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  Precommitment and Disagreement

  Jeremy Waldron

  A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: Why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in whether and what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation.

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  Virtue en Masse

  Jeremy Waldron

  It is a pity that Sandel neglects the sociological side of John Stuart Mill’s argument in On Liberty–not just because he fails therefore to do justice to the liberal case for neutrality, but also because the question of how traditional moral ideals fare in modern circumstances of mass society (and also global society) is in fact supposed to be a dominant theme of Sandel’s book. Sandel suggests that the liberal ideals of freedom and autonomy are sociologically not available in modern circumstances; however, under modern circumstances, the Aristotelian ideal of a polity devoted to the inculcation of genuine full-blooded virtue may not be sociologically available either. We cannot pretend that the United States has the population of quattrocento Florence. If the scale of political organization is so different as to enable only civic agency of a different sort, then it is likely that our thinking about “the qualities of character necessary to the common good of self-government” will have to be different too. If the premises of Benjamin Constant’s discussion of the reality and the phenomenology of politics in the modern world are taken seriously, they may necessitate a rethinking of civic virtue: both of what it is and how, more structurally, it is related to the agency conditions of collective action.

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  Europe Upside Down: Fallacies of the New Afrocentrism

  Kwame Anthony Appiah

  This work contains 44 articles which have been selected for their influence on anthropology, history, cultural studies and philosophy. It reveals the interpenetration of ideas and concepts within and across disciplines, regions and historical periods.

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  Liberalism and the Plurality of Identity

  Kwame Anthony Appiah

  Recent government documents have recommended a framework for transformation which will have major implications for the curricula of higher education institutions, but have not eleborated on what these should be. The content and process of curriculum change has therefore still to be worked out, and this collection begins the task of generating the climate and ideas for transformation.

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  Realizing the Virtual Library

  Kwame Anthony Appiah

  I hardly ever go to a library. But the libraries at Harvard University are among the major resources for my work as a teacher and researcher. I access them sitting at home or in the office, connected by modem, at all hours of the day or night. I can use them the way I do for a simple reason: the HOLLIS databases contain most of the books I use, organized in ways that make it possible for me to and them. The real books can be delivered to me and returned by my research assistants: what I need, when I am deciding what to read, is the virtual trace of the book in the database. If the system also made available online the Philosopher’s Index and the MLA bibliographies, I could do almost all the journal searches I wanted, too: and if I could take the articles off the system (with a reasonable copyright charge), I would. I am delighted that the library makes possible what it does, in as transparent a way as possible for this user and look forward to more of the same: using even more of the resources of Widener Library while hardly ever going there. One thing more I would like to see is online access to journal articles—not abstracts alone, but the articles themselves. This would add enormously to the utility of the library as a support for my research: I could read more of them, browse more (and not randomly as I now do on paper but using searches for key words), and could quickly follow up references. The difference in the quantity of time spent on research would make possible a qualitative difference in the kind of work I could do. It used to be a serious scholarly project to collect all the recent literature on a subject. To do it one needed the help of expert reference librarians or a great knowledge of the field. Now, with the bibliographic resources available and the fact that they are stored in machine-readable and thus searchable formats, the work of months or years can be done in a few hours. It is not just that time is saved in locating the material: because texts can be searched online, I can actually handle the text in ways that were never before possible. I can ask questions—about the way in which an author uses language, for example—that I simply wouldn’t have bothered to ask using traditional research methods.

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  Clinical Studies in Law

  Gary Bellow and Randy A. Hertz

  Clinical programs, in one form or another, exist today in virtually all of America's law schools.1 In some, law schools run their own clinics, with students handling cases (usually for indigent clients) and taking related courses or seminars. In others, students can participate in “externship programs,” in which they are placed in law offices to work on cases under the supervision of practicing attorneys. In addition to such opportunities for work on actual cases, law schools generally also offer “simulation courses,” which use elaborate role-plays to teach the skills and thinking processes involved in legal practice. Whatever the form, clinical programs have brought major changes in legal education in the past two decades. They have also brought a great deal of controversy. In virtually every school, there has been heated debate about the nature, cost, and goals of clinical instruction and the role of practice-related activities in law study. What follows is a brief description of the issues and insights that this controversy has generated.

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  On What Judges Should Not Say About the Police

  Paul G. Chevigny

  On January 22, 1996 in an otherwise obscure drug case, U.S. v. Bayless, Judge Harold Baer, Jr. threw out evidence consisting of an enormous quantity of drugs as well as Bayless' confession. Enforcing the exclusionary rule under the Fourth Amendment, Judge Baer held that the police had not had a ‘reasonable suspicion’ that would justify stopping Bayless' car and questioning her. The decision prompted an unprecedented storm of criticism. Newt Gingrich and other Republican leaders called on the President to ask for Baer's resignation, and members of the bar and bench rallied to the defense of the independence of the judiciary. Mayor Giuliani and former Police Commissioner Bratton, as well as former Commissioner Raymond Kelly, had rushed into print immediately after the first decision to denounce it, even before Newt Gingrich got on the bandwagon. Finally, after weeks of controversy, Judge Baer reversed himself and let the evidence in on April 1, 1996 (is there some cynical joke in the choice of the day?). The question is: why was the January decision the subject of such controversy and why in 1996? The exclusionary rule, which after all is now some eighty years old in the federal system, has long been a whipping-post for politicians sounding the alarm on crime and denouncing the courts for coddling suspects. Yet, as Bayless' attorney said, ‘Never before have the President of the United States, the Speaker of the House, 140 members of Congress and a Presidential candidate sat in on a case and said that a Federal judge should be impeached or resign’. To answer the question, I surveyed news reports in New York City surrounding Baer's decision, as well as another decision about the exclusionary rule a few days later, by state judge David Friedman, that had an outcome both the same and curiously different. I have used news reports, for the most part, rather than legal sources, because I am concentrating more on the public reaction than on the merits of the legal dispute about whether Baer's decision was justified. It would be easy to claim that the attack on the initial Bayless decision was just one more sign of the triumph of a long trend toward reversing ‘formalistic’ protections for defendants. To be sure there were attacks on other judges who made decisions that favored defendants. And it is true that the furor over Baer's decision coincided with the publication of the book Guilty: The Collapse of Criminal Justice, by New York Justice Harold Rothwax, who castigated just such ‘rigid’ protections as the exclusionary rule. I do not disagree with the claim; I think that the criticism of Judge Baer was part of a trend. But it is important to see, in a fine-grained way, just how that trend is taking hold. An examination of the argument, taken in the context of other contemporaneous news about law enforcement, points toward the conclusion that the demonization of Judge Baer was being used to turn aside and quiet a counter-discourse, which, in criticizing the police for violence, corruption and prevarication, might suggest that protection for suspects is important. The implied dialogue between criticism of the judiciary for coddling criminals on the one hand and criticism of law-enforcement for violating rights on the other could be read in the news even during the weeks that Judge Baer was under the most intense attack. On February 11, police in Queens pulled Lebert Folkes, an unarmed black man, out of a car, based on a report that the car was stolen. During the ensuing altercation, the police shot and wounded Folkes. It later turned out that the stolen car report was false; the car had been reported returned, but the police failed to correct the report in their computers. The following day, the police department apologized to. On March 9, a state judge in New Jersey excluded evidence seized by the state police in 19 drug cases on the ground that the police had ‘singled out black drivers’ for investigation. And the next day, a New York City police officer went to trial charged with recklessly shooting a black plainclothes policeman four times in the back when he mistook the black officer for a robber. Other stories might be drawn from the same period to the same purpose—but the interesting thing about them is that no one drew any systematic conclusion from them; although their implications are not exactly obscure, they were treated as just so many interesting news stories. So far as my research shows, not one of the stories, nor all of them taken together, were used by any writer, either in a news or editorial capacity, to explain judicial hesitation about the reliability of law-enforcement determinations, much less in defense of Judge Baer's decision. I suggest that the reason is that opinion leaders, police and politicians as well as some journalists, were resisting the limits on state power that was implied by a vigorous criticism of police abuse and by the exercise of the exclusionary rule itself; they were avoiding the implications of the criticism and of the practical sources of the exclusionary rule itself.

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  Performing Interpretation: A Legacy of Civil Rights Lawyering in Brown v. Board of Education

  Peggy C. Davis

  When it comes to race and racial issues these are strange times for all Americans. More than forty years after Brown v. Board of Education put an end to segregation of the races by law, current debates about affirmative action, multiculturalism, and racial hate speech reveal persistent uncertainty about the place and meaning of race in American culture and the role of law in guaranteeing racial equality. Moreover, all sides in those debates claim to be the true heirs to Brown, even as they disagree vehemently about its meaning. Race, Law and Culture takes the continuing controversy about race in law and culture as an invitation to revisit Brown, using this case as a lens through which to view that controversy and the issues involved in it. The essays collected here describe the contested legacy of Brown as well as the way it is implicated in America's persistent uncertainties about race. In so doing they confront crucial questions about race, law and culture in contemporary America: What were the legal and cultural visions contained in Brown? How have those visions been articulated in other legal struggles? Why does the subject of race continue to haunt the American imagination? With original essays from contributors such as David Garrow, Lawrence Friedman, and Hazel Carby, this work will be an important perspective from which to view questions of race in modern America.

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  National Remedies for Breach of EC Law: The Changing Approach of the ECJ

  Gráinne de Búrca

  Remedies for Breach of EC Law Edited by Julian Lonbay Senior Lecturer, Director of the Institute of European Law, University of Birmingham Andrea Biondi Research Fellow, Institute of European Law, University of Birmingham Foreword by The Rt Hon. The Lord Slynn of Hadley A cornerstone of the success of the European Union is the effectiveness of Community law. Without adequate remedies and sanctions in the national courts to ensure the proper application, this effectiveness cannot be guaranteed. In recent years the question of available remedies has caused much debate, particularly in light of the Factortame I and Francovich cases. Since then, a number of other key cases have been heard which have widened the scope of the debate. Within the context of the development and refinement of this crucial aspect of Community-Member State relations, Remedies for Breach of EC Law draws on a team of expert commentators to analyse in detail the key issues which arise. In his Foreword, Lord Slynn highlights some of the important questions which are considered: Should Article 215 be developed to give a more effective remedy in compensation even than Francovich? Are any general lessons to be learnt from the remedies provided in the public procurement directive? Is the current atmosphere browbeating, or inducing, the Court to be less creative—should it? What are the special needs or enforcement of the law relating to the environment, to competition, to trade marks and to the protection of works of art? With its expert and in-depth analysis of this important issue, Remedies for Breach of EC Law is an essential reference for EC practitioners and academics who need to understand the implications of ensuring effective protection of EC law in national courts.

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  The Role of Equality in EC Law

  Gráinne de Búrca

  Papers collected by the Centre for European Legal Studies, Cambridge. This collection of papers offers an all-round view of how the principle of equal treatment has developed in the various branches of EC social law and policy. An examination of EC law and practice concerning the prohibition of discrimination in the economic and social spheres. The collection includes three chapters of particular relevance to business: the role of equality in EC law (Gráinne de Burca); the principle of equal treatment on grounds of nationality in Article 6 of the EC Treaty (Siofra O'Leary); and equal treatment, the internal market and indirect taxation (Conor Quigley).

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  Introduction

  Norman Dorsen

  When the first edition of this book appeared in 1977, it was already long overdue. Generations of students—in a world where a generation is three years—had endured the intimidating, if exhilarating, experience of studying to become lawyers. They had done so without an authoritative guide to law school—to opportunities and pitfalls, to courses and overall curriculum, and to ethical and emotional problems that are often ignored or misunderstood. The Society of American Law Teachers filled this gap by publishing a book that advised law students, and those considering law school, on how to cope with the perplexities and stresses of legal education. Now, two decades later, a fourth edition of the book appears. The twin earthquakes of Vietnam and Watergate, which rocked all Americans and particularly the young, have faded from public consciousness. At the same time, the unprecedented humanism of the Supreme Court under Earl Warren has been replaced by a cautious and generally conservative view of the Constitution as interpreted by the current Court and by majorities in both houses of Congress. The ebullient social concern that once dominated the thinking of many students has been succeeded, among many, by cynicism and materialism. Law professors are rethinking legal education; many new ideas are afloat. Readers of this book will profit from the ferment reflected in its pages.

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  An Economic Approach to the Doctrine of Equivalents

  Rochelle C. Dreyfuss

  Proceedings of the 1997 Symposium on Intellectual Property Law, University of Washington, Seattle, sponsored by CASRIP and the Asia Pacific Legal Institute.

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  The Doctrine of Equivalents: An Economic Analysis of Patent Scope

  Rochelle C. Dreyfuss

  Proceedings of the 1997 Symposium on Intellectual Property Law, University of Washington, Seattle, sponsored by CASRIP and the Asia Pacific Legal Institute.

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  Predispute Agreements to Arbitrate Statutory Employment Claims

  Samuel Estreicher

  The Supreme Court held in its 1991 ruling in Gilmer v. Interstate/Johnson Lane Corp. that, in view of the Federal Arbitration Act of 1925 (FAA), employees could enter into binding predispute arbitration agreements encompassing claims they have against employers under the Age Discrimination in Employment Act of 1967 (ADEA), and by extension other federal and state employment laws. Because in that case the arbitration agreement was part of a registration process with the New York Stock Exchange, rather than a contract of employment directly between Gilmer and his former employer, the Court was able to avoid construing the reach of the exclusion in §1 of the FAA for "contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce." The scope of the FAA § 1 exclusion will have important practical implications for the future of arbitration of employment claims. In post-Gilmer rulings to date, the Fifth, Sixth and Seventh Circuits and several district courts6 have narrowly read the exclusion as limited to seamen, railroad workers and others directly "engaged in" interstate commerce. Despite the clear trend of post-Gilmer decisions, however, there remains a good deal of uncertainty and controversy over whether predispute agreements to arbitrate statutory employment claims will or should be enforced. This paper addresses some of the policy and legal questions concerning predispute agreements between employers and employees to arbitrate future disputes whether they arise as a matter of contract or under employment discrimination statutes or other employment laws. Policy considerations are considered at the outset because they are likely heavily to influence how the legal issues raised by Gilmer ultimately will be resolved.

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  Of Crimes and Criminals: The Development of Criminology in Britain

  David W. Garland

  This essay presents an interpretation of the historical development of criminology in Britain. Any such history is inevitably a contentious undertaking, entailing theoretical choices and rhetorical purposes as well as the selection and arrangement of historical materials. Whether they acknowledge it or not, histories of the discipline necessarily come up against fundamental issues—What is ‘criminology’? What are its central features? How are its conceptual and historical boundaries identified? In what institutional, political or cultural contexts should it be situated? It may therefore be useful to begin by outlining some of the theoretical assumptions which underpin the interpretation offered here. I take criminology to be a specific genre of discourse and inquiry about crime—a genre which has developed in the modern period and which can be distinguished from other ways of talking and thinking about criminal conduct. Thus, for example, its claim to be an empirically grounded, scientific undertaking sets it apart from moral and legal discourses, while its focus upon crime differentiates it from other social scientific genres, such as the sociology of deviance and control, whose objects of study are broader and not defined by the criminal law. Since the middle years of this century, criminology has also been increasingly marked off from other discourses by the trappings of a distinctive disciplinary identity, with its own journals, professional associations, professorships and institutes. One of the central concerns of this essay will be to try to explain how such a discipline came to exist as an accredited specialism, supported by universities and governments alike. My broad historical argument will be that modern criminology grew out of the convergence of two quite separate enterprises—‘the governmental project’ and ‘the Lombrosian project’—which together provided a social and an intellectual rationale for the subject. By talking about a ‘governmental project’ I mean to refer to the long series of empirical inquiries, which, since the eighteenth century, have sought to enhance the efficient and equitable administration of justice by charting the patterns of crime and monitoring the practice of police and prisons. This tradition of inquiry was eventually to become a major part of the criminological enterprise and to provide criminology with its central claim to social utility. The ‘Lombrosian project’, in contrast, refers to a form of inquiry which aims to develop an etiological, explanatory science, based on the premise that criminals can somehow be scientifically differentiated from non-criminals. Although each of these projects has undergone important revisions during the twentieth century, and the situation of criminology has been significantly altered by its entry into the universities, I will suggest that the discipline continues to be structured by the sometimes competing, sometimes converging, claims of these two programmes. One pole of the discipline pulls its members towards an ambitious (and, I have argued elsewhere [ . . . ]deeply flawed) theoretical project seeking to build a science of causes. The other exerts the force of a more pragmatic, policy-orientated, administrative project, seeking to use science in the service of management and control. Criminologists have sometimes sought to overcome this tension by rejecting one project in favour of the other—either giving up the search for causes in favour of a direct policy orientation, or else disengaging from governmental concerns in the name of a pure (or a critical) science. However, the combination of the two seems essential to criminology's claim to be sufficiently useful and sufficiently scientific to merit the status of an accredited, state-sponsored, academic discipline. The coming together of these two projects was by no means inevitable. The historical record suggests that it took several decades for officials to accept that the Lombrosian search for the causes of crime had any relevance to their administrative tasks, and, in fact, Lombroso's criminology had to be extensively modified before it could be of service to policy-makers and state authorities. Beyond that, the very idea of a science devoted to ‘the criminal’ seems in retrospect to have been something of an historical accident, originally prompted by a claim that was quickly discredited: namely, that ‘the criminal type’ was an identifiable anthropological entity. Were it not for the contingency of that intellectual event there might never have been any distinctive criminological science or any independent discipline. As an historical counterfactual, it is perfectly plausible to imagine that crime and criminals could have remained integral concerns of mainstream sociology and psychiatry and that ‘criminological’ research undertaken for government purposes could have developed without the need of a university specialism of that name. If this is so, and criminology has a contingent rather than a necessary place in the halls of science, then its history becomes all the more relevant to an understanding of the discipline. In the light of the assumptions and arguments I have outlined here, history becomes essential to an understanding of the modern criminological enterprise. If we are to understand the central topics which criminology has marked out as its own, if we are to understand the discipline's relation to institutional practices and concerns, if we are to understand some of the key terms and conceptions which structure the discourse, then we will have to ask genealogical questions about the constitution of this science and examine the historical processes which led to the emergence of an accredited disciplinary specialism. Moreover, the kind of historical inquiry required is one which is sensitive to context and contingency, and to the relation between intellectual developments and the social practices out of which they emerge. If my claim is correct, and criminology is a product of the convergence of certain ideas and interests, in a particular institutional context, then its history cannot be treated, as it so often is, as the gradual unfolding of a science which was always destined to appear. Such is the prevalence of this kind of history that it may be worth discussing the shortcomings of received accounts, before going on to sketch an alternative approach.

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  Politics and Policy in Criminological Discourse: A Study of Tendentious Reasoning and Rhetoric

  David W. Garland

  Throughout the history of their discipline, criminologists have endeavoured to maintain a distinction between what they say as scientists and what they do as political citizens. Indeed this distinction has been so important that a revision of its terms has been seen to lead to a major revision of the discipline itself, as the case of ‘radical criminology’ makes clear. The conventional position is that while individual criminologists may well be politically committed—usually to particular penal policies and legal reforms—these concerns and values should be kept quite separate from the “purely logical or purely scientific appreciation of facts” which their science demands. In other words, a firm distinction is maintained between criminology as a scientific discourse and criminology as a programme of penal reform. Of course no one has ever denied that these two projects have accompanied and complemented one another. Indeed this pairing of ‘science’ and ‘policy-relevance’ has been criminology’s major asset in the struggle for research funding and institutional recognition. But nonetheless the convention continues that an interest in matters of policy should not impair one's integrity in matters of science. That this imperative has been more of an ideal than an actuality docs not detract from the point at issue. In fact, those instances where writers have recognisably failed to maintain the separation (and one might include here the case of Cyril Burt) have served only to re-affirm the distinction's importance. On the other hand, this ideal has not been without its detractors. Indeed on occasion the very possibility of distinguishing ‘politics’ from ‘science’ has been denied, leaving us with an epistemological nihilism which has no means of knowing the world, only a policy for judging it. The argument which will be presented here differs from both of these positions. It will proceed not by denying the possibility of such a distinction, nor by chastising individual failures to observe it, but by arguing that the concepts and discourse of criminology have been developed in a manner which has silently but steadfastly refused any such distinction, i.e. that criminological discourse has always been ‘political’. Perhaps I can clarify this argument by approaching the issue from a slightly different angle. A related problem is registered in the philosophy of science by the distinction between the ‘external’ and the ‘internal’ history of a theory. It is argued by lmre Lakotos (1981), that in order to explain the foundation of a science, its initial orientation and the energy behind its formation, one must make reference lo external social, political and cultural conditions. However, once a scientific project is reasonably well-established, these external factors will tend to become marginalised as the internal logics and methods of reasoning of the science itself take over. If this internal scientific take-off occurs, then concepts will be developed, investigation or experiments undertaken, data will be accumulated and analyses refined, in accordance with the increasingly autonomous logic of the discipline. In other words, to the extent that this internal logic asserts itself, the social origins of the science will tend to fade into its pre-history. This pattern of development has been charted for a number of disciplines, and most notably in regard to the history of statistics in Britain—which in some ways overlaps with the history of criminology. However, if the discipline of statistics has partially succeeded in shrugging off its political parentage, my argument will be that criminology shows no signs of following a similar path of maturation. Indeed it will be argued that this lack of autonomy from politics and ‘external’ ideologies is an inescapable feature of the discipline of criminology as it has developed in this country over the last 100 years. The aim of this paper will be to move from this initial criticism to a demonstration of precisely how such political and ideological elements entered into a discourse which prides itself on its scientificity and value-freedom. There is no doubt that criminology’s initial formation, in the 1870s and 1880s, owes a great deal to external events. I have tried to trace the complex history of these events elsewhere, so perhaps I may be forgiven for simply asserting here that criminology is not a product of scientific reasoning and discovery. It is rather a product of the prison, of the institutions and ideologies which individualised and differentiated the criminal, and of the social desire to do so in a thorough and rigorous manner. Criminology, as others have pointed out, is not a science, nor even a knowledge which aspires to scientificity. It is a social-problem-solution which utilises some of the methods and much of the prestige of other scientific disciplines. Its objects of study—and this applies as much to present day criminology as to that of a century ago—are the ‘criminal’ and the forms of ‘criminality’. These objects are neither real entities nor theoretical products but are instead socially-defined problems in need of a scientific solution. The ‘criminal’ or his ‘criminality’ become objects of study precisely because they are chosen targets of particular social policies. Theoretically, the criminal has no more right to a science of his own than do the law-abiding or the ‘honest poor’—who in some ways pose more difficult questions. The argument of this essay will be that this ideological foundation—this social problem raison d'être—taken together with the reforming concerns of criminologists, crucially affects the subsequent development of the discipline. Instead of settling down to a development which is internally directed in accordance with the patterns of theoretical logic, criminology is continually transformed and directed by external factors—by the demands of penal policy, political viability and ideological conformity. In other words, criminology's policy programme—its external relations and its external history—continues to assert its ideological effect upon the ‘science’ of criminology. The two cannot be separated because they are interdependent—the science is the programme and the programme is the science. Precisely because criminology's object is a social problem—defined by policies, ideologies and state practices—its ‘external’ origins will always be internal to it.

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  Probation and the Reconfiguration of Crime Control

  David W. Garland

  Over the course of the last two decades, and at an accelerating pace over the last five years, the field of crime control and criminal justice has been reconfigured in important ways. The probation service is deeply implicated in that transformation, though its relation to the process has been problematic. The service gives the impression of being caught up in a current that is sweeping it away from its bearings, and is caught between trying to resist and trying to swim with the tide. This is a strange position for the service to find itself in. After half a century of being in the vanguard of progressive change, the probation service now appears as a conservative force, straining to hold on to a framework that is fast disappearing. Such is the strength of the current, however, that probation has not been able to hold out against it. Probation work, and the self-identity of probation staff, have probably changed more in the last 10 or 15 years than over the previous half century. If a practising probation officer from the 1970s were to be transported in a time capsule to the present day, without experiencing the intervening years, he or she would find the language and the ‘mission’ of the Chief Officers of Probation, or the Probation Inspectorate to be quite alien (and quite probably unintelligible).

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  Making the Decision to Go to Law School

  Stephen Gillers

  You think law school may be for you? Join the crowd. In 1950, there were about 220,000 lawyers in the United States. By 1960, that number had jumped to 285,000, then to 355,000 ten years later, to 542,000 in 1980, and to about 850,000 today. At this rate the profession may top one million lawyers early in the twenty-first century. The nation's population is also growing, but not as fast. In 1960, there were 627 Americans for each lawyer. The ratio was 572 to 1 ten years later, 418 to 1 in 1980, and 310 Americans per lawyer in 1990. A ratio of 275 to 1 is likely in the year 2000. As you might expect, the number of people entering law school and the number of law schools have also increased. In 1963, nearly 21,000 students entered the first year at 135 accredited law schools. A dozen years later, 39,000 students entered 163 accredited law schools. In 1988, 175 accredited law schools received nearly 43,000 new students. In 1994, 177 schools admitted more than 44,000 new students. The number of first law degrees awarded by accredited schools nearly quadrupled in the quarter century from 1964 to 1989, jumping from about 9,600 to 35,700. Six years later (1995), the number of these degrees totaled nearly 40,000. The composition of the profession is also changing because of the increase in women and minorities. This change can clearly be seen when we look at legal education. In 1963, of the nearly 47,000 law students enrolled in the 135 law schools then accredited by the American Bar Association, only 3.7 percent were women. In 1994, when 129,000 students were enrolled at 177 accredited law schools, 43.2 percent of the student body were women. Minority enrollment in American law schools has also advanced. In 1977, 5,304 African-American students were enrolled in American law schools. By 1994, that number increased to 9,681. Corresponding numbers for Hispanic students are 2,531 (1977) and 6,772 (1994), and for Asian and Pacific Island students, 1,382 (1977) and 7,196 (1994). How do we explain the astonishing popularity of law? What are the reasons to choose legal training and then, predictably but not necessarily, a career in law? What are the reasons not to do so? What in your view do lawyers actually do? Where did you get your ideas? Like most law school applicants or new law students, you probably have a favorable image of legal work. It may have been drawn from the press and popular culture. Or perhaps a relative or family friend is a lawyer, enjoys the work, and tells interesting stories about it. Maybe your interest in law school was sparked because prelaw or other advisers told you that skills you revealed in college or on a job would make you a good lawyer. The income, status, and prominence that lawyers enjoy—and the attention the law itself receives—are further lures to many. So is the expectation that it is possible through law to foster change that will make the world more just and fair. My purpose is not to tell whether any of the usual reasons for attending law school is “good” or “bad.” But many law students and law school aspirants partly misconceive what it means to be a lawyer—to spend a life doing the work of a lawyer. Still others may lack a firm concept of the work. This chapter, among others in the book, is directed at that gap. Unless a close relative or friend is a lawyer or one has worked in a law office for some time—and perhaps not even then—how is a law student or law school applicant likely to have acquired a fair sense of what lawyers do, of what he or she will do as a lawyer? Two sources of information are our culture and the classroom. Let us distinguish here between work and role, between what lawyers actually do and the way lawyers are portrayed. Popular presentations of lawyers encompass mainly their roles—he fought for justice, she made the government act honorably, he saved an innocent man, she closed down a large industrial polluter—and portray their work—what they do day-to-day—only incidentally. Depictions of the work, when they occur in books, on stage, in films, on television, or in the press, whether presented as fiction or fact, are dramatic. They emphasize the glamour and ignore the routine. It has become a cliche to say that Perry Mason is atypical, in fact apocryphal. But Perry Mason is too easy to write off. Our recognition that Perry Mason is fantasy does not mean that we have become hard-nosed realists about the legal profession. Every tense TV trial scene, every play or movie, such as Jagged Edge, The Verdict, Kramer vs. Kramer, Witness for the Prosecution, The Caine Mutiny, and Twelve Angry Men; every book or newspaper (or television) account of a momentous trial, such as those of John Hinckley, Jr., 0. J. Simpson, Claus von Bulow, Mike Tyson, Oliver North, Jean Harris, Sacco and Vanzetti, or William Kennedy Smith; every trial lawyer's selected memories of his life in court, such as Louis Nizer's My Life in Court, Edward Bennett Williams's One Man's Freedom, Alan Dershowitz's The Best Defense, Gerry Spence's Gunning for Justice, F. Lee Bailey's The Defense Never Rests; every TV series about the adventures of lawyers (“L.A. Law,” “Murder One,” “Law and Order”) or law students (“The Paper Chase”) creates an image of lawyers and their work that must impress anyone not familiar with the more routine daily tasks of practicing lawyers. And that's before we get to the novels of John Grisham and Scott Turow.

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  Industrial Policy in Canada and the United States

  Robert L. Howse and Marsha Chandler

  The view that governments should act to encourage economic growth, enhance the living standards of citizens, and protect workers is deeply entrenched in both the United States and Canada. Macroeconomic policy, as discussed in the previous chapter, seeks to influence the economy by setting the broad monetary and fiscal context within which businesses, investors, and workers operate Industrial policy, by contrast, seeks to shape economic growth and competitiveness more directly. It is the self-conscious effort to use government policy to create or restore the competitive advantage of particular sectors, industries, or firms - or, alternatively, to shelter firms and their workers from threatening economic changes. Traditionally, industrial policy was seen as operating through a narrow range of instruments, such as subsidies or trade restrictions that were clearly targeted towards alteration of comparative advantage in specific industries. However, on both sides of the border, such direct instruments have been receding, and the conception of industrial policy is being expanded to encompass a wide range of policies that effect the economic competitiveness of a nation, including framework policies, research and development, education and training, infrastructure, and quality of life. Similarly, there is a continuing political struggle in both Canada and the United States to define the basic purposes of industrial policy. All industrial policies, by definition, involve attempts to alter market outcomes. However, there is an important distinction between industrial policies that seek to resist or block changes in comparative advantage or to protect against the impact of market forces, and those that seek to enhance or preserve competitiveness in the light of, or in anticipation of, changing global market conditions. Examples of the former kind of policy are subsidies or trade restrictions aimed at preserving the domestic markets of industries under threat from low-wage competitors in South Asia. Examples of a market-facilitating policy are training and retraining programs to shift human resources from sectors in which a country has lost comparative advantage to other industries where local firms have more potential to be competitive internationally. Understandably, while market-resisting policies focus largely (or, in many cases, exclusively) on protecting the domestic market, market-facilitating policies are also preoccupied with the capture or recapture of export markets. The discourse of industrial policy in Canada and the United States increasingly shares the language of high technology, human capital, and market facilitiation. The Clinton administration has seized on technology and science as the fundamental building blocks for restoring the United States' competitive position in the international marketplace while maintaining high wage levels. In Technology for America's Economic Growth: A New Direction to Build Economic Strength, a report issued in February 1993, the administration identifies three goals as being critical for U.S. success in the new global marketplace: economic growth that creates jobs and protects the environment; more productive and responsive government; and world leadership in basic science, mathematics, and engineering. Similarly, the Chrétien government's “Red Book,” which set out the Liberals' 1993 election platform, speaks of the need to create a technologically advanced and innovative economy by forming technology networks among universities and industry associations, by strengthening research and development, and by expanding assistance for the funding of basic research. Both governments emphasize investment in human capital as an integral part of restoring their nation's comparative advantage. Increased training and other labour market reforms, with a view to building a more flexible and responsive workforce, are seen as the primary means by which a high-skill, high-wage economy is to be created. As a result, both the Chrétien and Clinton governments have outlined a number of policy prescriptions designed to move the workforce in this direction. Both have also stressed the need to rebuild and enhance the national infrastructure, especially in communication technologies. This chapters explores the patterns of convergence and divergence in the broad approach to industrial policy in Canada and the United States. It argues that, traditionally, Canadian governments at both federal and provincial levels have undertaken more explicit and wide-ranging attempts to shape their economy and have utilized a wider range of policy instruments than American governments. However, in recent years, there has been a strong convergence between the two countries. This convergence has come from two different directions. On the one hand, U.S. policy makers, increasingly concerned with maintaining their competitiveness in a more globally competitive world, have begun to pay somewhat more attention to industrial policy. On the other hand, the faith of Canadian governments' in the efficacy of traditional industrial policies, and in their capacity to achieve these policies, has declined. Industrial policies in the two countries are therefore increasingly alike, both in the objectives they pursue and in the instruments they use. To be sure, different cultural traditions, institutional frameworks, and policy legacies sustain important differences in strategy and detail. Nevertheless, in the industrial policy sector, the most powerful trend has been convergence between these North American nations. The chapter is organized as follows. The first section explores the implications of globalization for industrial policy, underlining the differences and similarities of the two countries in their location within the global marketplace, and the tightening links between trade policy and industrial policy. The next two sections review the basic instruments of industrial policy, starting with both countries' use of traditional instruments such as public ownership, subsidies, and defence procurement, and then moving on to the more recent emphasis on instruments such as research and technology, framework policies, social programs, human capital, and new forms of partnership. The final section summarizes the extent of convergence and divergence in the industrial policies of Canada and the United States, and looks at some possible explanations for the patterns that have emerged.

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  The Free Trade—Fair Trade Debate: Trade, Labor, and the Environment

  Robert L. Howse and Michael J. Trebilcock

  Many trade scholars—both lawyers and economists—view the increasing preoccupation with “fair trade” as the most fundamental intellectual challenge or threat to the liberal trading order that has arisen in recent decades. This refers to the proliferation of arguments that free trade is only “fair” where one's trading partners adopt certain kinds of domestic policies and/or refrain from others (whether the policy area be competition law, intellectual property rights, regulation of services, environment, or labor standards), although concerns that the practices of one's foreign competitors are unfairly rigging the marketplace have a long genesis in international trade law, as reflected particularly in antidumping and countervailing duty laws. The fair-trade claims that are currently generating the most debate in the trade community are those related to environmental and labor standards. The Economist magazine recently noted that “labor standards and environmental issues are playing an increasing role in international trade disputes” and are likely to be the central area of conflict between developed and developing countries in the next decade. Most free traders see recent demands that trade be linked to compliance with environmental and labor standards as motivated by the desire to protect jobs at home against increased competition from the Third World and view many fair traders as charlatans (protectionists masquerading as ethicists). Where such demands cannot so easily be reduced to protectionist pretexts, free traders are inclined to portray the advocates of linkage as irrational moral fanatics, prepared to sacrifice global economic welfare and the pressing needs of the developing countries for trivial, elusive, or purely sentimental goals. Although there is certainly an element of truth in these characterizations, we believe that free traders have, in general, been too cavalier in their summary rejection of arguments that trade, environment, and labor rights should be linked. A visceral distrust of any or all demands for trade restrictions has impeded a careful analysis of the kinds of normative claims at issue and has allowed fair traders to characterize free traders as moral philistines. Under these circumstances, the debate about trade, environment, and labor rights has frequently assumed the character of a “clash of absolutes.” The position of the free traders is reflected in two recent GATT dispute panel rulings, both concerning the legality under GATT of U.S. embargoes of tuna imports. The embargoes were targeted, either directly or indirectly, at tuna fishing practices in the Eastern Pacific, particularly those of Mexico, which resulted in the deaths of large numbers of dolphins. Despite some differences in interpretive approach, both panels held that the environmental exemptions in Article XX of the GATT (which refer to protection of animal life and health and to conservation of natural resources) do not extend to trade sanctions whose environ- mental impact depends on inducing other countries to change their policies. Although neither panel ruling has been formally adopted by the GATT Council, and although there is currently no exemption in Article XX of the GATT that applies to labor rights-based measures (except with respect to restrictions on imports of products of prison labor), the principle that trade sanctions should never be a legally permissible response to the environmental and labor policies of other countries has become an article of faith among most free traders, or at least the beginning point6 for any discussion of the relationship between GATT rules and global environmental and labor rights concerns. The notion that there is, or should be, no room whatever within the GATT/WTO legal framework for trade measures in response to labor and environmental policies of other countries has arguably heightened the intuitive discomfort many citizens feel about transferring domestic sovereignty to an international institution like the World Trade Organization. It is significant that of all the GATT panel rulings in recent years, only Tuna/Dolphin I has attracted widespread attention and scrutiny beyond the trade law and policy community, particularly in the United States. If international trade law simply rules out of court any trade response to the policies of other countries, however abhorrent, then there will be an understandable, and dangerous, temptation to declare that international trade law is an ass. The lesson of the recent heroic exercise to gain congressional approval of the Uruguay Round agreements, including the provisions establishing the WTO, is that any rules-based approach to international trade is unlikely to be durable unless, in the end, it is able to command significant public legitimacy. People who are concerned about endangered species may not end up sitting on many GATT panels, or negotiating many trade treaties, but in liberal democracies they do vote, and the fate of the international trading order depends, in certain respects, on their support.

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  The Political Economy of Federalism

  Robert P. Inman and Daniel L. Rubinfeld

  Recent changes in the institutions of government economic policymaking in western and eastern Europe, efforts to write new constitutions for Russia and South Africa, and the less dramatic, but no less important, pressures to redefine policy responsibilities between levels of government in such contrasting economies as the United States and China suggest that now is a good time to revisit a long-standing topic of traditional political economy: the design of federalist political institutions. The framing in 1787 of the United States Constitution marked the beginning of the contemporary debate, pitting Montesquieu's ideal of a decentralized "confederate" republic composed of sovereign member city-states against the vision of Madison and the other Federalists of a "compound" republic with an overarching central government responsible to the union's common citizenry. The tension between the confederate model of independent city-states each with an effective veto over central government actions and the compound model of a central government capable of acting against local interests remains at the center of today's debates over the design of federalist constitutions. Can contemporary political economy help us to understand better the important trade-offs implicit within the choice between a confederate and a compound republican constitution? This survey seeks to provide one answer. Section 1 reviews the political and economic arguments for the confederate republic, while Section 2 reviews the economic theory behind the compound republic. Two federalist dimensions of any republic's constitution are identified: representation (R) of the local city-states to the central government and the assignment (A) of governmental tasks to the city-states or the central government. We suggest one approach for choosing the efficient compound republic as a preferred combination of R and A. The analysis in Sections 1 and 2 will reveal a central tension between economic efficiency and democratic rights and virtues. Choosing values of R and A ultimately requires a balancing of these potentially competing economic and political objectives. The decentralized federalist structure of the confederate republic favors the goals of democracy; the more centralized compound republic places a greater weight on economic efficiency. Section 3 explores the stability of federalist constitutions: When might an individual city-state secede from a confederate or a compound republic? Economic conditions and political institutions required to hold a federalist republic together are identified. Section 4 offers a concluding comment on directions for new research.

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  The Redistricting Morass

  Samuel Issacharoff

  In a democratic society, the purpose of voting is to allow the electors to select their governors. Once a decade, however, that process is inverted and the governors and their political agents are permitted to select their electors. Through the process of redistricting, incumbent political actors choose what configuration of voters is most suitable to their political agenda. The decennial redistricting battles reveal the bloodsport of politics, shorn of the claims of ideology, social purpose, or broad policy goals. Redistricting is politics pure, fraught with the capacity for self-dealing and cynical manipulation. That different configurations of electors will yield different electoral results is hardly new or noteworthy; the pejorative term “gerrymander” stems from the creative linedrawing of Massachusetts Governor Gerry and the founding strokes of the American republic. What is still relatively new is the attempt to constrain, under the aegis of the federal Constitution, the most wanton excesses of the process. It was only thirty years ago that the Supreme Court required rural legislators in Tennessee and Alabama to redistrict their states to reflect the growing urban population centers and thereby undermine their stranglehold on state political power. The commands of the one-person, one-vote rule of redistricting are by now so ingrained as to obscure what else is new in the 1990s round of redistricting. For the first time since the great Supreme Court reapportionment decisions of the 1960s, redistricting authorities had to contend not only with equipopulational districting, but with vigilant protections of minority representation as well. Only after the passage of the 1982 amendments to the Voting Rights Act and the Supreme Court's expansive endorsement of the amended Act in the 1986 North Carolina redistricting case, Thornburg v. Gingles, did the issue of minority-controlled districts emerge front and center in the decennial battles over representation. In state after state, the question of minority districts became the most visible and debated issue after the 1990 Census, oftentimes joining an uncomfortable alliance of minority incumbents, aspirants for political office, and the Republican Party, the latter armed with the oversight powers of the federal Justice Department. Particularly for moderate Republicans without ideological opposition to race-conscious politics, the prospect of concentrating (or “packing,” as the practice is known in the redistricting trade) the traditional Democratic votes of racial and ethnic minorities into minority-dominated districts offered the possibility of eviscerating the biracial power bases of many liberal Democrats—thereby realizing the long-term strategy of the late Lee Atwater, who early on saw in the ·redistricting battles of the 1990s the chance to weaken, if not destroy, Democratic control of state legislators and the House of Representatives. Despite the centrality of minority representation to post-1990 redistricting, the process took place in the absence of any well-defined standards of law, particularly with regard to the application of the Voting rights Act. The leading cases under Section 2 of the Voting Rights Act—the section that prohibits diminishing of minority voting influence—were forged in the battles against at-large or multimember electoral districts. These electoral systems allow all members of a given jurisdiction to vote separately on each candidate for office, and thereby allow a voting majority to control every seat in an election. For example, if a community were 60 percent white and 40 percent black, and if the races had consistently different voting preferences, the result of an at-large election for a city council in which black and white candidates vied head-to-head for each of five council positions would likely be that the white candidate would prevail in each contest with about 60 percent of the vote. In such cases, the perceived harm was the capacity of majority communities to capture a disproportionate share of representation by the ability to vote serially for each candidate for local office. The principal remedy has been the creation of electoral subdistricts in which minority voters, acting in concert, are able to select a representative of their choice. Unfortunately, the post-1982 vote dilution case law gave little guidance to measuring alternative electoral arrangements following a decennial reapportionment. In the context of such decennial redrawing of district lines, the stakes are far more complicated than in the binary decision of should there be single-member districts or at-large elections. Rather, redistricting poses the question of choosing among competing plans in which all jurisdictional lines are up for grabs. Nor did the prior cases articulate the conditions under which state redistricting entities are either permitted or required to resort to race-conscious practices. These were the issues presented to the Supreme Court initially in cases arising from the redistricting battles in Minnesota, Ohio, Florida, and most notably, North Carolina, the setting for Shaw v. Reno. Whereas the prior cases had addressed the remedial use of race-conscious districting to alleviate proven exclusion, the 1990s redistricting cases concerned the affirmative use of race in the quintessentially political process of dividing electoral spoils.

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  Paramount or Paradox: An Update

  Marcel Kahan

  This work is designed to provide practical and useful information on the subject matter covered. However, it is sold with the understanding that the publisher is not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

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  The Delaware Paradigm: A Doctrinal Primer

  Marcel Kahan

  This work is designed to provide practical and useful information on the subject matter covered. However, it is sold with the understanding that the publisher is not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

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  Competing Conceptions of International Law: First Nations and the United Nations

  Benedict Kingsbury

  This book mainly includes papers presented at a 1995 University of Saskatchewan conference, The United Nations at Fifty: Issues and Opportunities.