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  Slouching Toward Gender Equality: Law and Doctrine on Sex-Based Employment Discrimination in the United States

  Sarah E. Burns

  Women in Law contains the updated papers presented at the George A. Katz legal conference on Women in Law held in Jerusalem. it addresses the major social challenge of attaining equality for women in the legal profession, In academia and in the judiciary. The work also analyses the additional burden on women who have to assume a double workload when they combine their legal career with motherhood. Part of the book highlights the law relating to women, including sex discrimination laws And The rights of women in the family. the main themes of the book are women in the judiciary, academic world and legal profession; laws promoting equality for women; women, law and religion; the legal response to sex crimes and family violence; and women pursuing careers and meeting family responsibilities. Contributors To The book include distinguished judges, prominent and leading attorneys from the USA and Israel. The work will be of prime interest to academics in law, women's studies and gender studies.

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  Proportionality and Wednesbury Unreasonableness: The Influence of European Legal Concepts on UK Law

  Gráinne de Búrca

  Is English law in the process of being reformed according to the principles of European law? Can different rules for two (or more) jurisdictions be upheld by English courts in the long run? This book, with contributions from leading public lawyers, is an extension of an SPTL seminar at the Centre of European Law, King's College in 1997. Its concern is with the convergence of the legal traditions of the United Kingdom and the emerging Common Law of Europe, with focus on public law and review of administrative action by courts in the United Kingdom. At a time when domestic and European law is becoming increasingly blurred, the concern is both with the influence of European Law on the development of common law doctrines (and the influence the other way) and with the more direct application of general principles of European Community Law and European Human Rights Law.

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  From Labor Law to Employment Law: What Next?

  Harry T. Edwards and Virginia A. Seitz

  Published in 1998 by the ILR School on the occasion of the dedication of the School's new classroom and library complex, Industrial Relations at the Dawn of the New Millennium also commemorates the distinguished history of the ILR School at Cornell, just over a half century after its founding. The essays in this volume were contributed by authors who have been a significant part of the ILR's history, and each is a scholarly overview of some aspect of the world of work. The editors, Maurice Neufeld and Jean McKelvey, were founders of the School, and the work as a whole is intended for alumni, scholars, and practitioners, both as a guide to the world of work and as a showcase of the ILR School's contribution to the scholarship surrounding industrial and labor relations.

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  A Rush to Caution: Cloning Human Beings

  Richard A. Epstein

  Few announcements have provoked more rapid public fascination and academic dismay than the news story in the Observer on February 23, 1997: Ian Wilmut and his colleagues at the Roslin Institute had successfully cloned Dolly, a sheep from a cell drawn from her (as it were) mother's mammary glands. That successful cloning clearly represented a major and somewhat unexpected technical breakthrough, and since that day further advances have followed rapidly. On July 25, 1997, the New York Times reported that a team led by Dr. Wilmut and Dr. Keith Campbell had been able to create a lamb that had a human gene in every cell of its body. That result was quickly topped by news that a Wisconsin biotech company had been able to clone three identical calves from fetal calf tissue, using processes that it claimed were more efficient and reliable than those used by the Wilmut group. My own position, which I shall develop here, is that these new developments call for no immediate legal response: Watchful waiting is far preferable to hasty or ill-conceived legislation whose unanticipated consequences are likely to do more harm than good. First, do no harm, is as good a principle now as it has ever been. But inaction leaves political actors on the sidelines, where they belong but not where they would like to be. So it was all too predictable that the first reports on cloning whipped into action a powerful coalition of the bioethical and legal professions. Various nations across the world, and several states in the United States took the first steps toward a ban on cloning human beings, and, somewhat more diffidently, research that could lead to the cloning of human beings. President Clinton responded to the whiff of crisis first by imposing a temporary ban on federal funding of cloning research, and then by asking President Harold Shapiro of Princeton University to head a distinguished review team of the National Bioethics Advisory Commission (NBAC) to chart the legal and political responses to cloning after taking into account the ethical and religious concerns raised about the practice. The report was duly prepared within 90 days and issued these two recommendations: • A continuation of the current moratorium on the use of federal funding in support of any attempt to create a child by somatic cell nuclear transfer [i.e., cloning]. • An immediate request to all firms, clinicians, investigators, and professional societies in the private and nonfederally funded sectors to comply voluntarily with the intent of the federal moratorium. Professional and scientific societies should make clear that any attempt to create a child by somatic cell nuclear transfer and implantation into a woman's body would at this time be an irresponsible, unethical, and unprofessional act. In addition, the NBAC recommended that any legislation prohibiting cloning should contain a sunset clause of between three and five years—an eternity in the field of biotechnology. The NBAC also urged that the regulations in question ''be carefully written so as not to interfere with other important areas of scientific research." It then enigmatically suggested that "if the legislative ban is ever lifted," the twin protections of independent review and informed consent be used to protect the human subjects who participate in preliminary research trials on cloning. From the tone of the report the "ever" suggests that "never" is the preferred position of most of the ethicists and theologians who have anxiously considered the problem. Why adopt this position in preference to watchful waiting? The usual justifications examine the various ramifications of cloning. One set of objections is quickly proving to be transitory, namely, that the practice is too dangerous to be conducted on human beings today. The second set of objections—those favoring "never"—promise a more permanent ban: a wide set of religious and ethical misgivings that promise to become more, rather than less, insistent as the techniques of cloning are improved. But "why?" is a question that should be asked in a second way: Why impose the ban now? The NBAC's report spends a good deal of time on the merits of human cloning, but it spends far less time thinking through the logic of research bans, whether induced by government decree or moral persuasion. That issue is worth a few comments here. My basic position is that our rush toward caution is not warranted by the factual information, practical doubts, religious convictions, or moral intuitions invoked to sustain it. I plan to get at this issue by taking a slight detour. I shall examine what I consider to be the basic conditions for banning any practice, and thereafter apply these standards to human cloning. I do not wish at present to commit myself to a position that cloning should be forever legal. Still less do I wish to commit myself to a view that some vision of untrammeled reproductive rights places human cloning on some preferred constitutional plane that defeats any and all government efforts to regulate or forbid the practice. Rather my point is merely one of practical philosophy: The presumption of liberty of action counsels waiting, not rushing, to impose any legal prohibitions on human cloning research.

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  Habitat Preservation: A Property Rights Perspective

  Richard A. Epstein

  The recent decision of the United States Supreme Court in the much anticipated case of Babbitt v. Sweet Home Chapter of Communities for a Great Oregon was a disappointment on many levels. For the record, some of my disappointment was personal, for I penned an amicus curiae brief whose arguments seemed to be entirely ignored by each of the three justices of the Supreme Court who wrote in the case: Justice Stevens for the Court, Justice O'Connor in concurrence, and Justice Scalia (joined by Chief Justice Rehnquist and Justice Thomas) in dissent. But the concerns go deeper than rejection and neglect, to address some very fundamental questions about the reasoning and outcome in the case itself. The substantive issue in Sweet Home is of central importance for the understanding of property rights: does the loss of habitat of an endangered species constitute a form of species harm that should be treated akin to some tort or wrong, or does the owner of the land have full rights to use or sell the habitat as he sees fit, subject only to the eminent domain power of the state? Yet this set of largely mechanical opinions, in large measure by design, did not reach the profound economic and constitutional issues raised by the broad issue of habitat protection. For the justices, the key feature of this case was one of legal pedigree: Did the secretary of the interior act pursuant to his statutory authority in putting forward the challenged regulation under the Endangered Species Act? The dominant focus of the judicial inquiry sought to square the regulation with the ESA and gave the government the benefit of the doubt along the way. Whatever one might think about the proper techniques of statutory construction, it is (or at least should be) clear that a court in construing a statute should have fewer degrees of freedom than the legislature that wrote it. It may well be that some naive form of plain meaning will not do the job in many cases, but, if so, the effort must be made to set the disputed provision within the larger context of the appropriate statute, with due consideration for the purposes for which the statute was passed. There are few general principles that prove substitutes for the best rule of statutory construction, which is a close reading of full provisions, and not an isolated examination of what is meant by a single word, whether it be discrimination in a civil rights statute, or harm in an environmental statute such as the ESA. But statutes can be amended and repealed and even clarified. Sweet Home would never have reached the Supreme Court as an exercise in statutory construction if the ESA had contained a single additional clause that said: "Provided: Habitat modification or destruction shall not be regarded as the 'taking' of an endangered species within the meaning of Section 9 of the Act." This observation about the clarity of language is meant to be substantively neutral. Thus this case would have been dispatched every bit as quickly, albeit in the opposite direction, if the ESA had stated: "Provided, that the FWS shall have full power to treat the destruction or modification of habitat as the taking of an endangered species under this Act." At some point therefore, disputes over meaning and interpretation, properly so-called, become both arid and pointless. Everyone knows what the statute means. The critical dispute is over policy and choice. This chapter takes up just this question of principle. Exactly what proviso should be engrafted on the ESA by amendment? Once that question is put forward in a forthright fashion, it is easy to draft language that avoids a judicial reprise of the Sweet Home dispute. The question is, what language? In attacking this question, I argue that the better social outcomes are achieved if the revised and refurbished ESA follows the common law rules on property rights. The full regime contains three parts. First, changes in habitat can be made at will by owners unless and until they constitute a nuisance to the property of others. Second, private parties and government agencies may purchase habitat in voluntary transactions. Third, government agencies may also exercise their takings power, conditioned on their willingness to pay just compensation. The reason for accepting this tripartite regime is purely functional. All relevant parties will operate under superior incentives if the government is required to pay compensation when it takes land for habitat preservation or restricts its ordinary use for the same purpose. The power to initiate changes must be offset by the willingness to bear the financial dislocations they induce. Facing these questions of principle is ever more vital today. The ESA has had a rocky history. Since its adoption in 1973 it has attracted avid supporters who regard the ESA as the centerpiece of a sound environmental program. It has also been scorned by equally fierce detractors who regard its operation, if not its conception, as one unmitigated disaster that should be stopped, if necessary, by prompt and wholesale repeal. The battle that began over a facial challenge to the regulation has spilled over into the halls of Congress, which until April 1996 limited the appropriations necessary for listing new species for protection under the act. Over the long haul, it is uncertain whether ESA will survive in its current form and, if not, what approach will be adopted in its stead. The Sweet Home decision is one chapter in an ongoing debate. It closes the book only on the narrow question of administrative law before it. Questions of policy are rarely divorced from questions of constitutional law, and those constitutional queries form the subject of the third section of this essay. The discussion here is in part a continuation of the normative analysis conducted in section 2. Indeed it could hardly be otherwise. The standard policy analysis worries about the creation of incentives on the various private and public actors, about the relative efficiency of public and private choice, and the impacts that decisions by one person have on the actions and welfare of others. The analysis is often couched in the language of social welfare, which itself appeals to the well-known compensation criteria of economics: did the loser receive compensation for the changes made, so that everyone was at least as well off after the change as before? Could the winners have paid the losers enough to bring them back to their previous level of welfare and still have remained better off themselves? With tests like this in operation, it is easy to see the close connection between policy and constitutional analysis. The change in legal regime constitutes the taking; and the offsetting benefits, if any, may constitute the required compensation for the associated losses. The courts have already faced, and rebuffed, various forms of takings challenges in the environmental area generally, and with endangered species in particular. The question is whether they are right to have done so.

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  "Come the Revolution": Employee Involvement in the Workers' State

  Samuel Estreicher

  Editor's Preface: The year is 2007 A.D. A collapse of stock market values has provoked a general demoralization of American society, particularly among employees who had heavily invested their pension assets in equity instruments. A series of work stoppages—beginning first among employees in the remaining unionized sectors of construction and automobile production, and spreading gradually to government offices and finally to the all-important non-union computer and financial services industries—has led to a general strike halting virtually all production and distribution in the country. Managerial confidence has reached an all-time low. At the invitation of their agents in Congress and the White House, the leaders of American finance and commerce assembled in Philadelphia on January 15th to develop a plan for rescuing the country. In desperation, unable to reach consensus after weeks of raucous debate, this assemblage of American Capital—including, among others, the representatives of the Business Roundtable, U.S. Chambers of Commerce, National Association of Manufacturers, National Federation of Independent Business, Labor Policy Association, Securities Industry Association, and Society for Human Resource Management—petitioned the AFL-CIO (whose ranks had been swelled by millions of general striker-recruits) to develop new rules for reconstituting the social order. "G" is a widely-respected, non-aligned intellectual active in the Movement for Progressive Social Change, a consortium of "public interest" and employee-advocate organizations. The AFL-CIO, mindful that there are as many non-members as members in the workforce, has asked G to participate in formulating guiding principles for labor market reform for the up- coming deliberations over a laborist social charter. (A different group has been convened to propose recommendations for capital market reform.) The following colloquy represents some of the initial musings between G and "P". P is a leading tactician for the AFL-CIO, assigned by the Federation to consult with G on this enterprise critical to the success of the workers' state. The Federation wants G's independent views but they also want G to take into account P's (hence, organized labor's) perspective.

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  A Tale of Two Congresses: Social Policy in the Clinton Years

  John A. Ferejohn

  Students of American politics have long been accustomed to viewing Congress as an obstacle course, if not a graveyard, for complicated and controversial legislative proposals. And, in many domains—most recently, campaign finance and health care reform—this image still seems to have much validity. But in other contentious policy arenas, recent Congresses have been surprisingly successful in enacting controversial policy proposals into law. The accomplishments of the 103d and 104th Congresses include, among other things, NAFTA, the renewal of GATT, telecommunications reform, a major crime bill, family leave legislation, minimum wage legislation, the line item veto, and, not least, welfare reform. This is a fairly impressive list of achievements. But the two Congresses also left behind an equally impressive list of failures. Most notable were the collapse of health care reform and the disappearance of welfare reform in the 103d Congress and the failure of the 104th Congress to reform or cut entitlements or to enact significant tax cuts.

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  Cooperation and Time

  John A. Ferejohn

  Self-Deception is one of the topics that lends itself best to the task of exploring the possibilities of cross-fertilization between ‘continental philosophy’ and ‘analytic philosophy’. Fifty years ago, in Being and Nothingness, Sarte defined the core notion of ‘Bad Faith’ as lying to oneself. On the other side of the Atlantic, Self-Deception has become one of the most exciting puzzles in the philosophy of mind, and a number of paradoxes encountered by the theory of rational choice involve that very same notion. One of the objectives of the conference was to show that bridges can be thrown over the gap between the two traditions, but also that both of them make self-deception too intrapsychic and suffer from a serious individualistic bias. The conferences was intended to explore the intersubjective and social dimensions of self-deception. The conference was conceived as a confrontation between three (very) different sources of ideas, models, theories regarding self-deception-a confrontation which had never taken place before: Donald Davidson's philosophy of mind and philosophy of action; the literature on the foundations of rational choice theory and, in particular, the so-called ‘paradoxes of rationality’ René Girard's theory of mimetic desire and its relationship to Sartre's ‘onto-phenomenology’.

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  Statutory Interpretation and Rational Choice Theories

  John A. Ferejohn

  A great deal of economics is about law—the functioning of markets, property rights and their enforcement, financial obligations, and so forth—yet these legal aspects are almost never addressed in the academic study of economics. Conversely, the study and practice of law entails a significant understanding of economics, yet the drafting and administration of laws often ignore economic principle. The New Palgrave Dictionary of Economics and the Law is uniquely placed by the quality, breadth and depth of its coverage to address this need for building bridges. Drawn from the ranks of academics, professional lawyers, and economists in eight countries, the 340 contributors include world experts in their fields. Among them are Nobel Laureates in economics and eminent legal scholars. The New Palgrave Dictionary of Economics and the Law will become a benchmark for reference of the highest quality.

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  European Sales Law and International Sales Law: Can They Coincide?

  Franco Ferrari

  When asked to contribute to this volume with a chapter on a possible European Sales Law, the first thought which came into my mind related to what has recently been defined as ‘arguably the greatest legislative achievement aimed at harmonizing private commercial law,’ i.e., the Convention which is officially known as the United Nations Convention on Contracts for the International Sale of Goods (hereinafter: CISG), the success of which is evidenced not only by the attention it has been drawing from legal scholars for the last 16 years, since its adoption in 1980 at the Vienna Diplomatic Conference, but also by the (still increasing) number of Contracting States: on a world-wide scale, the CISG has already been entered into force in close to fifty countries. On a European level, the CISG has come into force, as has recently been pointed out, in all but three member States of the EU (namely Belgium, Great Britain and Portugal). But also if one goes beyond the territorial limits of the EU, one will have to agree that the CISG is firmly rooted in Europe, since nearly 15 other European countries had entered it into force by the end of 1995, a list to which one must add Poland, where the CISG came into force on June 1st, 1996. From what has been said thus far, it becomes apparent that the CISG cannot be disregarded when examining the possibility of creating a European Sales Law. However, this article does not deal with the issue whether regard should at all be had to the CISG in creating a European Sales Law, but rather whether the CISG should be adopted as such Sales Law.

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  Theories of Harmonization: A Cautionary Tale

  Harry First

  Proceedings of the Workshop, Bruges, College of Europe, July 3-5, 1997

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  Does Punishment Work? Does the Evidence Matter?

  David W. Garland

  The organisers have set me two questions to address: Does punishment work? Does the evidence matter? It should be clear to everyone by now that the first question needs to be better specified if it is to be properly answered. As it stands, it would make a rather tricky exam question in a penology course, because it compels the person answering it to start at first principles and define the issues. Any student who just answered simply “yes, punishment does work” would certainly fail. He or she might well be advised to change to a career in politics. But, on the other hand, it would be very surprising if punishment did not work, in some respect or other, since institutions of punishment exist in every known society and these institutions show no signs of disappearing. On the contrary, punishment is a growing industry, both here and abroad, and seems highly impervious to recession and to public spending restraints. To a sociologist, the continued and vigorous existence of the institutions of punishment implies, at the very least, that they perform some important functions, for some groups or groups, and with a greater or lesser degree of success—although these functions may not be the ones that are commonly believed to motivate the institution, and the institutions may not serve the best interests of society as a whole. Indeed, the penology student answering this question would do well to begin by noting that the actual functions of the institution may be quite at odds with the stated purposes of those who administer and support it. Manifest functions and latent functions—objectives which are publicly proclaimed and objectives which are, in practice, actually pursued—need to be reviewed as quite separate things. And any analysis of the workings of punishment needs to bear in mind that a whole range of values and interests find some representation in the rituals and routines of punishment. The real question then, is not “does punishment work?” but is rather a series of related questions: (a) What are the precise penal and social functions that punishment serves? (b) What are the economic and political and cultural strategies in which punishment operates? (c) What are the values and group interests that are furthered by punishment in its present form? (d) To what extent, and at what cost, are these functions realised? In response to these, more detailed questions, the sociology of punishment has a lot to offer. It begins with the proposition that the punishment of offenders is much more than just a way of dealing with crime. Punishment may appear, on the face of things, to be a straightforward means to an end—an apparatus for punishing criminals and reducing crime—but it is also, as sociologists have vividly demonstrated, a number of other things besides. Punishment is also, for example, a forceful display of state power and a means of upholding the rule of law. It is a statement (and sometimes a mis-statement) of collective morality and a vehicle for emotional expression (though not always an adequate vehicle for the many and conflicting emotions that crime arouses on the part of victims and others). It can be a means for governing poor and marginal groups, sometimes a major means of doing so, as Jerome Miller suggested is happening in the USA where very large numbers of young black males are under some form of penal control. It is an economically significant industry, as Nils Christie has documented in his book Crime Control as Industry, and it is, finally, a set of symbols which displays a cultural ethos and helps create a social identity. To understand the workings of punishment in Britain—or more strikingly in the Netherlands, or Saudi Arabia, or the USA—we need to look not just at the crime problem in these countries, but also at the social structures, political processes and moral sensibilities that shape these particular penal systems and are, in turn, shaped by them. Punishment is a social institution, shaped by its history and continually interacting with strategies of power, socio-economic structures and cultural sensibilities—it is never merely a means to an end. So does punishment work? Well, yes and no. If we leave aside for the moment these wider functions, and think only of the penal and crime-reduction objectives that it pursues, there is a quite complicated picture. Our penal institutions aim to reduce crime through deterrence and reform and the incapacitation of offenders—and the performance of each of these tasks can be evaluated by reference to evidence, though such evaluation is never as straightforward as it seems. The general view of penologists is that our penal system is effective in producing a level of general background deterrence; that this basic deterrence effect (which can disappear during police strikes or periods of social disorder) depends more upon perceptions of the risk of apprehension than upon perceptions of the punishment that will be imposed; that marginal increases in the punitiveness of sentencing or penal regimes have little effect; and that levels of deterrence similar to those we now have would be sustained even if levels of punishment were to be considerably decreased.

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  Frameworks of Inquiry in the Sociology of Punishment

  David W. Garland

  This article discusses the tendency of recent work in the sociology of punishment to adopt a ‘social control’ framework of analysis, derived in part from the work of Foucault. The limitations of this perspective are illustrated by reference to Durkheim's conception of punishment, which is itself discussed and criticised. Thereafter, the social and cultural significance of punishment is briefly outlined, drawing attention to penality's political and social functions, its deep cultural resonance, and its psychic and emotional supports. The essay concludes by suggesting how a more multi-dimensional framework of inquiry may help us to better understand the complexities of this social institution.

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  Sociological Perspectives on Punishment

  David W. Garland

  The standard ways in which we think and talk about punishment are framed not so much by sociological theory as by two rather different discursive traditions, which might best be described as the “penological” and the “philosophical” . . . In recent years a third style of thinking about punishment has begun to develop and to offer a different framework for the analysis of penal issues. Instead of viewing punishment as a means to an end or a stock problem for moral philosophy, sociologists and historians have begun to conceptualize punishment as a social institution and to pose a series of questions that stem from this approach. In place of questions about punishment's effectiveness or its justification, these writers have been asking, “How do specific penal measures come into existence?” “What social functions does punishment perform?” “How do penal institutions relate to other institutions?” “How do they contribute to social order, or to state power, or to class domination, or to the cultural reproduction of society?” and “What are punishment's unintended social effects, its functional failures, and its wider social costs?” “Punishment” is thus understood as a cultural and historical artifact that may be centrally concerned with the control of crime but that is nevertheless shaped by an ensemble of social forces and has a significance and range of effects that reach well beyond the population of criminals. And the sociology of punishment—as I shall term this emergent tradition—has been concerned to explore the social foundations of punishment, to trace out the social implications of specific penal modes, and to uncover the structures of social action and webs of cultural meaning that give modern punishment its characteristic functions, forms, and effects. However, it would be quite misleading to continue to discuss the sociology of punishment as if it were a single, unified framework of thought. On closer inspection, the sociological and historical literature on punishment displays a range of theoretical approaches, analytical perspectives, and concrete interpretations that do not necessarily add up to form a single coherent or comprehensive account. Instead, what one finds is a set of competing interpretations, each one drawing on a different model of sociological explanation, each one going at the problem in a different way and for a different purpose, and each one highlighting a different characteristic of punishment and its social role. Like much of sociology, the sociology of punishment is characterized less by a settled research agenda and agreed parameters of study than by a noisy clash of perspectives and an apparently incorrigible conflict of different interpretations and varying points of view. One response to this situation has been to adopt a particular perspective—say, a Marxist approach, or a Durkheimian one—and to develop this analysis in critical disregard of other ways of proceeding. However, it is at least arguable that such an approach is less fruitful than one that tries to bring these different theoretical perspectives into conversation with one another, seeking to synthesize their interpretative strengths, to identify analyses that are complementary rather than contradictory, and to isolate specific points of disagreement so that one can endeavour to resolve them by means of further research or theoretical reflection. What I do in this essay is to survey the major sociological interpretations of punishment and to give some sense of the resources that social theory offers for the understanding of punishment. I set out a number of perspectives in turn, dealing first with the more established traditions associated with the work of Durkheim, Marx, and Foucault and then with the perspective suggested by the work of Norbert Elias . . .

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  Remote Risks and the Tort System

  Clayton P. Gillette

  remote risks and the tort system. The economic view of tort law provides that legal rules should define the scope of liability in a manner that induces individuals to take precautions that are ‘reasonable’, defined in terms that compare the expected cost of accidents (costs that will materialize should the accident occur, discounted by the probability of the accident) to the cost of precautions that would prevent the accident or ameliorate its effects. Since the function of economic analysis is to provide actual incentives to individuals, and not simply to state some ideal test that cannot be achieved, this calculus assumes the ability of target actors (those who are expected to act reasonably) to make ex ante calculations of appropriate conduct, and the ability of fact-finders (judges and juries) to determine ex post whether the target actors complied with the standard. Standard cases of tort law—for example, automobile accidents or slip-and-fall cases—involve situations in which human experience is sufficiently rich and the relevant knowledge sufficiently accessible, that we believe that both target actors and fact-finders will perform the relevant calculus with relative accuracy. A potential problem arises for this analysis when the relevant actors are ignorant of the costs, probabilities, or precaution costs related to an accident, even though those actors have invested optimally in the search for that information. Imposing liability in such cases may induce target actors to take more precautions than can be justified under the economic conception of tort law, or might encourage target actors to withdraw from socially desirable activities. Liability might be justified in such a case if we believed that the target actor was best positioned to determine the optimal investment in safety and to demonstrate that it had made the optimal investment. But there may be cases in which that showing is itself so subject to uncertainty that there exists serious doubt about the proper scope of liability. These issues become particularly salient where risks are remote, that is, where they occur with low frequency. The remoteness of the risk suggests that either target actors or fact finders could be ignorant of the information necessary to perform the relevant calculus. In addition, low probability either may be the source of or may aggravate heuristic devices that individuals use to deal with bounded rationality. These heuristics may systematically skew the decision making process about risk and thus prevent individuals from making the kinds of calculations that are necessary for optimal investments in risk avoidance. The mere fact that individuals act under conditions of bounded rationality, however, does not of itself suggest that liability is inappropriate. Whether a target actor should be liable when a remote risk materializes may depend on the source of ignorance, the relative capacity of parties to compensate for ignorance, and the capacity of decision makers to adjudicate the reasonableness of the target actor's decision.

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  Ethical Considerations in Child Welfare Cases: Duties of the Law Guardian and the Parent's Attorney

  Martin Guggenheim

  The Role Of Counsel Representing Parents in Child Protection and Termination of Parental Rights Proceedings. It is a truism that attorneys do a better job when they believe that their work is worthy and when they value the rights of the clients whom they represent. The excellent esprit de corps developed by the criminal defense bar has often enabled attorneys for indigent criminal defendants to achieve remarkable results for their clients against overwhelming odds and despite intolerable working conditions. Unfortunately, attorneys who represent parents in child protection cases have not developed a similar esprit. To the contrary, all too commonly these cases seem to take the shape of a joint effort by the state, the children, the judge, and counsel for the parents to arrange a result which protects the children from any risk of future harm by the parents -- usually placement with a child-care agency on consent.

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  Coexisting with the Enemy: Jews and Pagans in the Mishnah

  Moshe Halbertal

  This essay aims to analyse some aspects of the rabbinic outlook in the second century, concerning the norms that govern relationships between Jews and pagans. The Mishnah tractate Avodah Zarah—which is the main source for the following analysis—reflects a reality of two communities, Jewish and pagan, entangled with one another, within the setting of the Hellenistic cities of the land of Israel. The Mishnah's main concern is to create a complex set of norms which will constitute the proper response of Jews towards an environment saturated with pagan worshippers and symbols. The most extreme and telling case of such close proximity between Jews and pagans, which the Mishnah aims to address and regulate, is represented in the Mishnah's ruling concerning a Jewish house which shares a wall with a pagan temple: “If [an Israelite] has a house adjoining an idolatrous shrine and it collapsed, he is forbidden to rebuild it. How should he act? He withdraws a distance of four cubits into his own ground and there builds. [If the wall] belonged both to him and the shrine, it is judged as being half and half . . .” (Avodah Zarah 3.6). The normative question that arises in the Mishnah is: what happens in a case where the wall which is shared by the temple and a neighbouring Jew's house has fallen, and the Jew wants to rebuild the wall? If the Jew re-erects the wall, it will involve not only rebuilding his own house, but also rebuilding a pagan temple. He therefore has to withdraw a distance of four cubits into his own ground. It is hard to imagine a case which would reflect closer contact between a Jew and a pagan temple. Entanglement of radically diverse communities is thus a given fact in the Hellenistic city, and the Mishnah aims to regulate the norms of such a shared social space. I do not aim to reconstruct the historical relations between Jews and pagans in mixed cities as reflected in other documents in the Mishnah. Nor do I intend to analyse the particular historical circumstances that led to the Mishnah's specific rulings. Rather, my aim is internal to the text of the Mishnah, and my question is: what sort of normative outlook guides the rulings of the Mishnah, and what type of interaction is countenanced by the norms of the Mishnah in the shared geographical and sometimes social space of the mixed cities in the land of Israel? This question can be answered independently of the as yet unanswered problem of to what extent those rulings were actually obeyed by the community. My enquiry is thus directed towards the normative conceptions of the dominant and most articulate Jewish elite of the time, and not to the actual behaviour of the Jewish populace. The main concerns of this chapter are how such a coexistence was tolerated and the conceptual framework which allowed sharing even to a limited degree a social space with pagans. In order to examine toleration and its limits in the Mishnaic text, it is important to outline different conceptions of toleration and their relations to the rabbinic world. The following conceptual outline will help us on the one hand to distinguish modern ideas of toleration from ancient ones, and on the other hand to attempt to define which of the conceptual possibilities is open to the rabbis. The first and most radical concept of toleration is based upon relativism concerning truth questions. Since truth is not yet available and thus we do not have any clear way to demarcate truth from falsehood, no one has the legitimate right to force someone out of his or her path. This view is expressed by Mill, who argues that pluralism is the condition of examining and experimenting with different ways of life in order to advance towards the truth which we do not yet have. The only coercive limitation which is permitted is to stop anyone from coercing another into his or her way of life. The relativistic argument has even stronger formulations than Mill's, which deny not only the present access to truth but its future possibility. According to such formulations of the relativistic approach, competing ways of life are incommensurable, hence a future arbitration between them is conceptually impossible. Besides the argument based on incommensurability, the relativistic argument has a postmodernist formulation grounded on Nietzsche's view that the very distinction between true and false is power based and thus another form of enslavement.

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  The Yeshiva

  Moshe Halbertal and Tova Hartman Halbertal

  Yeshiva life is a life of an ongoing conversation, a conversation that takes place in the Beit Midrash—a large, simple study hall where students sit and study. In the famous and big Yeshivas the Beit Midrash holds a few hundred students whose ages range from 16 to 40 years old or even older. The conversational mode of study is created through the institution of the havruta (in which students are divided into pairs). The pairs or partners spend twelve hours a day or more reading together the Talmud and its commentaries, exploring its meanings and debating its complexities. Thus the choice of one's partner is one of the most crucial decisions in the intellectual life of a Yeshiva student. The discursive mode of study is not restricted to the individual partner; questions and answers circulate across the Beit Midrash. It is very common for students to move around in order to discuss a problem with another havruta who has earned a reputation in the study hall. Since the whole Yeshiva studies the same tractate from the Talmud, the Beit Midrash becomes a microcosm of a cross-generational give and take. Young and old often discuss the same problem, which circulates around the hall as the issue of the day. The Beit Midrash can be compared with another arena of study: the library. Libraries are areas where silent reading and isolated reflections on a text take place. Movement and noise are minimized as much as possible as they are considered a desecration of the silence of the sacred space. The Beit Midrash is noisy and full of body language, where study is experienced as a communal activity. The accumulation of the dozens and sometimes hundreds of small havruta discussions creates a steady and loud background noise for the observer an impediment for learning - for the participant, almost a necessity for concentration. The movement of hands, the shaking of the bodies, the different ways of leaning on the “stender” (stand) the variety of facial expression ranging from a concentrated face troubled by a difficulty with the text to a triumphant and joyous smile of discovering a novel insight, all constitute the choreography of the Beit Midrash. This rich body language adds a dimension of physicality to the act of learning never experienced in lecture halls or libraries. The conversational mode of the Beit Midrash affects the nature of frontal teaching at the Yeshiva. Students spend most of their time studying with their partner the same page of the Talmud that will be taught by their teacher in the classroom. The average ratio between hours of frontal lectures and time spent in havruta study at the Beit Midrash is approximately 1 to 20. Many students invest more time preparing for class than their teacher, developing their own ideas, and coming to their lesson ready not only to listen and learn but to argue and be heard. A usual class in the Yeshiva will quickly turn from a well-ordered presentation of the teacher into a lively and sometimes chaotic exchange between a few bright students and their teacher. The classroom does not function as the presentation of the truth by the all-knowing scholar imparting knowledge to ignorant or less knowledgeable receptacles, who write down all he says uncritically. Yeshiva learning is conversational in yet another sense. Students do not write exams or papers at the end of a term. The evaluation of the students and the ranking of their achievements occurs through the students' participation in the ongoing exchange in the Beit Midrash. The close and intimate knowledge among students of each others' capabilities and achievements is remarkable given the lack of any systematized form of evaluation. The steady oral exchange, however, creates a reputation, and forms a clear picture—who is sharp, who is hard working, who is lazy and who is out of place—well known to the participants in the enclosed space of the study hall. In addition, writing is rare in the Yeshiva even when it comes to summarizing the teachers' classes or the students' own ideas. Teachers reading their lectures from a prepared text is a rare event. The lack of writing highlights another feature of the Yeshiva. In the Beit Midrash ideas come and go, questions and answers are raised and forgotten. When the same tractate is to be studied again in the next cycle of learning, teachers are expected not to repeat their old readings but to innovate. A good teacher and a bright student are not known for a particular thesis or theory which they have advanced, but rather for their unique style of teaching and approach towards a talmudic discussion. It is no wonder that teachers are selected and promoted not on the basis of written publications, but on their oral reputation in the Yeshiva world as sharp and knowledgeable Talmudists. In the Yeshiva both students and teachers own their talents and knowledge, not their ideas or theories. Since being a Yeshiva student is being a contributor to an ongoing discussion at the Beit Midrash, older students and partners are far more crucial to the initiation of a student than teachers. Socialization at the Yeshiva occurs through successful integration into the stream of conversation at the Beit Midrash, in mastering its rules and in internalizing its discourse. There are no introductory classes to the Talmud at the Beit Midrash and there is no methodological orientation, 3 any entrance point in the conversation is as good as another.

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  School Finance Reform and the Alabama Experience

  Helen Hershkoff

  In communities across the country, parents are increasingly going to court to enforce their children's state constitutional right to education. Many of these lawsuits claim that public schools have insufficient resources to provide their students with even a minimally adequate education. Conditions in rhe children's schools are often bleak: dilapidated and unsafe buildings, dirty and poorly maintained facilities, and widespread deficiencies of essential resources such as textbooks and equipment. Moreover, such schools are said to have low expectations of their students' ability to succeed, and standardized test scores and other conventional measures of learning are frequently unacceptably low. In response to these lawsuits, courts in about one-third of the states have struck down school funding methods and in some states have even found entire public school systems to violate state constitutional mandates. Judicial declarations that a state public school system is inadequate and inequitable have precipitated legislative efforts to increase school funding, to restructure public schools, and to hold school systems accountable for the achievement of students. This chapter addresses efforts by civil rights advocates in one southern state to use a state constitutional right to education as a lever to precipitate systemic school reform. The discussion proceeds from the perspective of a lawyer involved in the planning and litigation of education cases for the American Civil Liberties Union. The first part presents an abbreviated case study of Harper v. Hunt (the author served as one of plaintiffs' counsel), a lawsuit that successfully challenged the inadequacy and inequity of the public school system in Alabama. Because the case is pending, it is premature to offer conclusions about the lawsuit's effectiveness as a catalyst for educational improvement. But even if the comments of this chapter are provisional, it seems clear that the lawsuit can already claim at least one major victory: it has encouraged new constituencies to participate in the school reform process, thereby altering the political climate for educational change. The second part of this chapter describes three features of Harper that seem to have contributed to the lawsuit's constituency-building capacity: plaintiffs' use of a state constitutional adequacy theory; plaintiffs' reliance on the state court as the focus of judicial activity; and plaintiffs' collaboration, at both the liability and the remedial stages of the lawsuit, with legislative and executive officials. The chapter concludes with the suggestion that judicially precipitated reform may be most enduring when it is able to facilitate a more inclusive public discourse on the need for institutional change. But it also questions the sufficiency of deliberative dialogue as a solution to the problem of underresourced, underachieving schools.

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  From Legitimacy to Dictatorship—and Back Again: Leo Strauss's Critique of the Anti-Liberalism of Carl Schmitt

  Robert L. Howse

  The encounter between Carl Schmitt and Leo Strauss remains a source of fascination and polemics for the friends and enemies of both thinkers. According to Stephen Holmes, both Schmitt and Strauss belong to a single tradition of anti-liberalism, whose ultimate practical implication is suggested by Schmitt's fate as a Nazi apologist. Indeed, Holmes places much emphasis on Strauss's criticism of Schmitt for failing to develop a critique of liberalism that goes beyond the horizon of liberalism itself and interprets this criticism of Schmitt as a call for a form of anti-liberalism more extreme and virulent than that propounded by Schmitt on the very eve of his membership in the Nazi party. Friends of Schmitt, or those who wish to revive his thought on the Right, have used his exchange with Strauss to a quite different effect. Drawing on the prestige of Strauss in America, and his international reputation as a Jewish thinker, it is possible to display Strauss's clear sympathy with elements of Schmitt's thought as an indication that the “last word” or deepest teaching of the latter cannot be fascism. Thus, Heinrich Meier, one of the leading apologists for Schmitt in Germany today, focuses on a quite different dimension of Strauss's critique of the Concept of the Political—in particular, on Strauss's supposition that Schmitt's ultimate concern in facing off with liberalism is to vindicate or restore the seriousness of life as against liberalism's reduction of the human drama to mere economics and entertainment. Meier argues that the ultimate disagreement between Strauss and Schmitt is as to whether the seriousness of life finds its vindication in theology (Schmitt) or Socratic philosophy (Strauss). Understood in this way, the deepest intent of neither thinker is to justify fascism or virulent political anti-liberalism. Meier's efforts on behalf of Schmitt appear to dovetail in some measure with recent attempts by friends of Strauss' to save him from Holmes's charge of anti-liberalism. Thus, Peter Berkowitz—in a penetrating review of Holmes's book in the Yale Law Journal—questions Holmes's reading of many of the passages in Strauss's work that he uses to justify placing Strauss squarely in the anti-liberal tradition. Berkowitz shows persuasively that Holmes ignores the context of many of these passages, as well as many other statements of Strauss where he indicates his sympathy for liberal democracy, and his clear preference for the liberal regime over the alternatives available in our times. Likewise, in an essay entitled “Leo Strauss's Liberal Politics,” Nasser Behnegar seeks to respond to Holmes, among others, by attempting to show that, even if he rejected liberal theoretical principles in favor of classic natural right, Strauss was able to see important affinities between the demands of classic natural right and modern liberal democracy. These affinities are visible in liberalism's openness to individual excellence, its protection of the freedom to philosophize and its opposition to and constraints on arbitrary and immoderate, i.e., tyrannical, power. A debate about Strauss's relationship to liberalism also exists among French post-Marxist thinkers of a progressive or liberal persuasion. Claude Lefort sees Strauss's thought as of great importance in the recovery of a solid normative ground from which to diagnose the excesses of twentieth-century totalitarianism Luc Ferry and Alain Renaut, by contrast, argue that Strauss's rejection of modern subjective freedom in the name of a fixed hierarchical conception of the human good places his thought in implacable opposition to the very idea of human rights, which for Ferry and Renaut must be at the core of any plausible contemporary liberal democratic, or liberal republican, theory. Although they have made a prima facie case that there are ways of reading Strauss compatible with some dimensions of liberalism, those who would establish Strauss's credentials as a friend of liberalism have as yet failed to provide an adequate explanation for his sympathetic engagement with the thought of Schmitt and especially an explanation of what Strauss meant by his call for a “horizon beyond liberalism.” Moreover, on the basis of Strauss's own observation that even Schmitt's anti-liberalism shares important premises or assumptions with liberalism, one might attribute statements of Strauss that have affinities with liberal thought to a shortfall in Strauss's aspiration to work pure, as it were, his own anti-liberalism, and to a self-consciousness of his inability to find a self-standing anti-liberal viewpoint.

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  Searching for Plan A: National Unity and the Chrétien Government’s New Federalism

  Robert L. Howse

  Whatever the views of the proverbial “ordinary Canadian,” media pundits, opposition politicians and constitutional experts have been relentless in pestering the federal government to develop a plan to “save Canada”—Plan A, as it has now come to be known. Despite the grandiose failure of what Peter Russell has described as “mega-constitutional politics” in the Canada round, there is no shortage of new proposals being generated that purport to restructure fundamentally the Canadian federation in the cause of unity. These include André Burelle’s European Union-inspired scheme of co-determination in Le Mal canadien; Tome Courchene’s ACCESS; and Gordon Gibson’s original Plan A. Further “solutions’ to the purported unity crisis are being worked on by a group of individuals oddly named the Group of 22, and by the Business Council on National Issues. The grand and comprehensive aspiration of most of these schemes indicates that the authors have learned little or nothing from the Charlottetown debacle—once acquired, a taste for mega-constitutional politics often sets the implicit (and sometimes explicit) standard against which more modest, more subtle, incremental changes to the working of the federation are judged and found wanting. Against this tendency, there is much to be said for judging the Chrétien government’s record on federalism on its own terms, that is, not as a timid and unsatisfactory attempt at some kind of comprehensive national unity project, but rather as based on an alternative vision to that of mega-constitutional politics. This entails viewing the evolution of the Canadian federation as advanced best not by “throwing the dice” and the manufacture or exploitation of crisis, but through step-by-step evolution of federal practice to reflect changing realities and evolving conceptions of justice. This vision is underpinned by an understanding of the institutional sophistication and complexity of the Canadian constitutional order, which adapts and changes through multiple channels and processes, including the political practice of federal-provincial relations, formalized intergovernmental agreements and the judicial interpretation of the constitution. Even the major innovation of the Charter of Rights and Freedoms in 1982 can be seen as the culmination of an increasing rights orientation in Canadian political culture, expressed in provincial human rights codes, and a series of constitutional decisions that inferred the protection of civil liberties from the general character of the Canadian constitution and the Canadian form of government. Similarly multiculturalism and its constitutional entrenchment were less a product of some ideal model of Canadian society, but a response to the reality of its changing shape. Likewise the amendment to the constitution in 1982 giving provinces increased control over their natural resources emerged from a context of difficult political bargaining and interaction between the provinces and the federal government, not from an academic’s or bureaucrat’s conception of an ideal, rational division of powers. On the basis of this more institutionally subtle and complex vision of how the federation evolves, the Chrétien government can claim some important achievements, although these will doubtless seem paltry to those still trapped in the mindset of mega-constitutional politics. The government has successfully pursued and achieved a major agreement with the provinces on the removal of barriers to internal trade; it has restructured its policy role in labour market training, developing agreements with the provinces that get the federal government out of the service delivery end while vindicating the national interest through performance-based, negotiated national standards; the government has begun to reimagine the Canadian social union, working with the provinces under the umbrella of the Ministerial Council for Social Policy Renewal and already achieving concrete results in the area of child poverty. A new national institution, the Canadian Food Inspection Agency, has been created, consolidating and rationalizing important functions within the federal government while providing a new institutional framework for interjurisdictional cooperation. If this were not enough, the government has—in the Speech from the Throne and the second Red Book of the Liberal Party—given itself the task, during the second mandate, of further enhancing mobility within the Canadian economic and social union, and pledged on 26 February 1996 to “work with the provinces and the private sector” to achieve “a much more open agreement” on internal trade. If the federal government has not neglected the task of strengthening the Canadian community, it has been labouring at some disadvantage because its vision of the Canadian community has remained largely unarticulated. Perhaps as a reaction to unrealistic and grandiose schemes, the government has consciously decided to portray its activity as muddling through or making the federation work better. In this chapter, I propose a vision of Canadian community that makes sense for the twenty-first century; a vision nevertheless rooted in the major transformations in the Canadian polity that have occurred in the last 25 years, from the introduction of bilingualism to the holding of a national constitutional referendum; and a vision that vindicates the general intuitions behind the significant but incremental changes to federalism that the government has sought to achieve over the last five years. Because this is not a partisan effort, it will also entail criticisms of federal practice, although not from the perspective of mega-constitutional politics.

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  State Trading Enterprises and Multilateral Trade Rules: The Canadian Experience

  Robert L. Howse

  Public enterprises (Crown Corporations) and regulated private monopolies are a long-standing characteristic of the Canadian political economy. Canada has certainly not been exempt from the global trend towards privatization and regulatory reform; nevertheless, Crown Corporations remain for many a symbol of national unity and strength, as well as something that is seen as differentiating us from the United States. Thus, the ideological agenda of privatization advanced in the 1980s by the Conservative Mulroney government met with considerable public resistance. In the end, a grab-bag of Crown Corporations were privatized, but as of the early 1990s these enterprises still accounted for 15.7 percent of corporate assets and 11 percent of GNP. More recently, the pragmatic, rather than the ideological, approach to privatization of the Liberal government has resulted in some national symbols, such as the Canadian National Railroad Company (CN) being sold off with extraordinarily little public outcry—the Liberals have handled labour relations issues sensitively, and have deftly managed as well the deployment of alternative policies to deal with, for instance, rural development concerns. Increasingly, Canadian privatizations have been accompanied by an open approach to foreign investment—in the CN case no restrictions were placed on the purchase of shares by foreigners, and in the petroleum sector, the nationalization of which was a major trade irritant during a certain period of Canada-United States relations, foreign capital and participation is now welcomed and Petro Canada has been privatized. In justifying privatizations, the Chretien government has emphasized the unsustainability of subsidization to loss-making enterprises and a changing regulatory and global trade environment, rather than the Thatcherite ideology that made the Mulroney program unpopular. With respect to regulated monopolies (whether public or private) and regulated industries where enterprises are granted special privileges, change has been either slow or has come in a piecemeal fashion, without much thought to the competition or other regulatory issues to be resolved in a shift to a competitive market. In telecommunications, the monopoly in long-distance voice traffic was ended by a regulatory decision in 1992 without a prior public debate or any legislative action. The regulatory authority has been making up rules of the game for a competitive market as it goes along, at the same time as foreign competition continues to be limited by ownership restrictions, as will be discussed in detail in a later section of the chapter. Not even the ultra-right-wing Harris government in Ontario has dared to risk unpopularity by dismantling the liquor or the electric power monopolies. The one government that moved towards liquor demonopolization, Alberta, nevertheless retained a monopoly on importation and wholesale trade. And cultural industries also remain sacred cows, where a host of protective measures including Canadian control, ownership, and content requirements remains broadly popular—to the point that in the Sports Illustrated dispute, where Canada lost both at the WTO panel and Appellate Body level, there may be some pressure for the government to remain in non-compliance with the GATT, even if this entails paying compensation or opening up Canada to retaliatory action. At the same time, a kind of faction is emerging in government policy circles in favour of using trade pressures as a beginning point for a re-thinking of a wide range of instruments of cultural protectionism. The political risks of doing so remain high. This chapter is intended to provide a tour d'horizon of the interaction of state trading practices in Canada with the world trading system, past, present, and emerging. Because the focus of this conference is on the trading system, I have certainly not attempted to present an overview of public enterprise, privatization, and related regulatory reform in Canada—instead I have selected areas where I believe there have been significant issues of trade policy and law intertwined with domestic regulation and deregulation of such enterprises. In defining the scope of this undertaking, it is important to recognize that the expression “state trading enterprises”, as it appears in Article XVII of the GATT includes not only state-owned and/or -controlled enterprises engaged in trade, but any enterprise that has been granted by the state “exclusive or special privileges”. This includes, in my view, privately owned and -controlled enterprises in Canada in sectors like broadcasting, telecommunications, and financial services, where entities must be licensed and conform to a variety of regulatory requirements in order to participate in the sector concerned (particularly where there is a discretionary element in the granting of a license, such as broadcasting or where, at least in the past, monopoly rights have been granted, such as telecommunications). Also, Article XVII applies to marketing boards, which application is confirmed in an Interpretive Note to Article XVII. Moreover, while the GATT applies only to goods, I have taken a broad view of my mandate and examined the trade issues in these service sectors as a major part of the chapter, if only because so many of the important trade issues now focus on the involvement of STEs in the services sector. In any case, even Article XVII itself arguably applies to these enterprises in as much as they are purchasers of goods.

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  Subsidiarity and the European Union

  Robert P. Inman and Daniel L. Rubinfeld

  Subsidiarity is a principle of governance designed to give meaning to the divisions of power and responsibility between the central government and constituent states in a federal system. The principle seeks to allocate responsibilities for policy formation and implementation to the lowest level of government at which the objectives of that policy can be successfully achieved. Today’s proponents of subsidiarity within the European Union trace its intellectual roots to twentieth-century Catholic philosophy: “Just as it is wrong to take away from individuals what they can accomplish by their own ability and effort and entrust it to a community, so it is an injury and at the same time both a serious evil and a disturbance of right order to assign a larger and higher society what can be performed successfully by smaller and lower communities . . . . (T)he more faithfully this principle of subsidiarity function is followed and a graded hierarchical order exists among the various associations, the greater also will be both social authority and social efficiency, and the happier and more prosperous too will be the condition of the commonwealth.” The task before those writing constitutions of the federal form for the European Union is to give meaning and content to the principle of subsidiarity. To do so requires, first, a clear articulation of the objectives of government, and second, a clear understanding as to how alternative federal constitutional structures might foster those objectives. A principle of subsidiarity then weighs these potentially competing objectives and in the process selects that federal constitution form which best promotes the desired balance.

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  Jurisprudential and Transactional Developments in Takeovers

  Marcel Kahan

  I survey jurisprudential and transactional developments in hostile takeovers. Recent Delaware court opinions in Unitrin, Wells Fargo, and Kidsco clarify both that “just say no” is a valid takeover defense subject only to minimal judicial scrutiny, and that courts will subject takeover defenses that go beyond “just say no” to process-based as well as heightened substantive scrutiny. I show how this doctrinal stance stems from the court's view of the proper allocation· of power between directors, shareholders, and judges: directors manage the company, shareholders express their view by electing directors, and judges should interfere in this interplay of powers only if it fails to function properly. Several transactional developments-specifically, the coupling of hostile takeover bids with proxy contests and the replacement of cash-financed, financial bids by equity-financed, strategic bids-can be understood, in part, as responses to these jurisprudential developments. In this paper, I will sketch some of the jurisprudential and transactional developments regarding hostile takeovers in the 1990s. The story I will tell is a simple one. Contrary to many other corporate law commentators, I will suggest that the Delaware Supreme Court's takeover jurisprudence establishes a coherent and consistent set of fairly straightforward standards guiding when a court will interfere in the corporate decision-making process and that some of the transactional developments are responses to this jurisprudence.

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  How Law Influences Behavior: Interest, Obligation, Commitment

  Lewis A. Kornhauser

  Law often claims a normative preeminence; whatever obligations an individual faces must, in case of conflict, yield to those imposed by law. Occasionally law makes a more encompassing claim of normative exclusivity: an individual faces only those obligations imposed by law. In a monolithic society, law might succeed in realizing these imperial claims. Society, though, is rarely, if ever, monolithic. Individuals within a society often have multiple normative commitments that arise from their membership either in smaller communities within the larger society as a whole or in communities that extend beyond the larger society. A resident of the United States, for example, though subject to its laws, has other, occasionally conflicting, commitments and loyalties: to her religion, to her workplace or her union, to her family and to her friends. This multiplicity of normative systems poses several questions for the study of law and society. A central question of the philosophy of law, for instance, concerns the relation between legal and moral obligation: Must a legal obligation necessarily be moral as well? Does law define “conventional morality?” Or does “conventional morality” determine which behaviors the law will condemn? Analogous questions arise with respect to every other source of obligation; what, for instance, is the relation between legal obligation and the informal obligations that arise among neighbors? Does the law simply embody the “customary” practices of individuals? Or does it form these practices? A second set of questions concerns the role that these various normative systems play in the determination of individual action. This question has both theoretical and practical import as it lies at the center of much debate about civil disobedience: When the law requires what one's god or one's conscience prohibits, how does one act? The question, however, arises in more mundane contexts as well because the law's requirements may conflict not only with one's obligations but also with one's interest. Studies of criminality must untangle the effects that norms within particular communities play in the determination of legitimate behavior from the economic incentives that individuals have to engage in that behavior. Similarly, the study of settlements in the “shadow of the law” must consider both the role of self-interest and of notions of equitable treatment and fair play. In the law and society literature, these questions concerning the interaction of multiple systems of norms recur in various guises. The literature on legal pluralism, for instance, began with the observation that conquest resulted not in the replacement of indigenous law with imperial law but in a complex interaction between them. The literature (surveyed in Griffiths 1986 and Merry 1988) then expanded to include the study of the relation among legal and nonlegal normative systems. While this literature has provided much insight into the role of law in society, it has not paid sufficient attention to how an individual acts when she is subject (or committed) to multiple normative systems. This oversight derives in part from a failure adequately to distinguish between the expressed content of norms and the institutional arrangements that create, interpret, and enforce them. The literature on private governance (surveyed in Macauley 1986) has also broached these issues either through the explicit comparison of legal and alternative methods of dispute resolution or through extended studies of nonlegal but formal systems of governance. This literature has tended to see nonlegal normative systems as placing a limit on the extent of social control that the law may exert. This perspective ignores other ways that systems of private governance might influence the content of the legal order. In this essay, I outline a framework for understanding the relation among normative systems and how an individual, faced with the demands of multiple normative systems, might act. Section 2 begins with a simple distinction between the “textual” and “institutional” aspects of any normative system and concludes with a crude classification of types of normative systems. Section 3 sketches some different ways in which law may accommodate (or fail to accommodate) other normative systems. Section 4, the core of the essay, distinguishes preference theories of action from obligation theories of action; these two classes of theories resolve the conflicts among normative systems and between normative systems and individual interest differently. Section 5 briefly considers the possibility that self-interest might explain the content of a normative order. Section 6 extends the argument by suggesting how the prior analysis applies to the study of actors within a normative regime. Section 7 discusses some implications of the multiplicity of normative systems for the analysis of power. Section 8 addresses the implications of normative pluralism for the evaluation of legal institutions. Section 9 offers some concluding remarks.