Faculty Chapters

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  Afterword

  Melissa Murray

  In January 2006, I arrived in Berkeley, California, for a job interview for an entry-level position teaching at the law school. The day was already pressure- filled, so imagine my utter terror when the appointments chair informed me that that Herma Hill Kay, Berkeley Law’s former dean and resident expert in Family Law and gender equality, was “very interested in talking to [me].” Our first audience began inauspiciously. I perched awkwardly on a chair in her office, trying hard not to stare at the photos and newspaper clippings that dotted the wall and shelves. I knew that Herma was a leader in many academic fields—Family Law, Conflict of Laws, Sex Equality—but it was nonetheless overwhelming to see her professional accomplishments splayed out across her office. There was Herma, resplendent in navy blue and gold, the first female dean of Berkeley Law. A framed certificate honored Herma’s service as one of the first women presidents of the Association of American Law Schools. On an adjacent shelf was the American Bar Association’s Margaret Brent Award, honoring Herma’s work advancing women’s rights and professional progress. There was a framed certificate commemorating Herma’s work as a member of Governor Edmund Brown’s Commission on the Family, which paved the way for California’s adoption of a no-fault divorce statute in 1969. Newspaper clippings chronicled Herma’s advocacy on behalf of California’s therapeutic abortion statute and the state’s ratification of the Equal Rights Amendment. In a smaller silver-edged frame was a photograph of Herma and Ruth Bader Ginsburg, heads together, editing their Sex Discrimination casebook. A framed newspaper article featured a photo of Herma throwing out the first ball at an Oakland As game with enviable form. There was even a photo of Herma piloting a single-engine plane. I tried hard to pay attention as she peppered me with questions, but I was dazzled. Everywhere I looked, I came face to face with Herma’s status as a living legend—a pioneer for women in the law. Six months after that first meeting, I joined the Berkeley Law faculty as an assistant professor, and Herma and I began building a professional and personal friendship that would last until her death in 2017. But curiously, in the ten years of our friendship, we rarely talked about Herma’s many accomplishments. Whenever I would try to get her to open up about her many successes, she would grace- fully steer the conversation in another direction. The only aspect of her work that she seemed especially eager to discuss was her book project chronicling the careers of the fourteen women who had preceded her as professors at accredited law schools. This project occupied her attention for the last fifteen years of her life. She spent countless hours interviewing her subjects and their colleagues, and poring over microfiche, newspaper clippings, and remnants of the women’s personal papers. Her goal, as she noted on more than one occasion, was to paint a complete picture of their professional lives. Despite long odds, these women had persisted, claiming a place in a profession that was often dismissive of them and their professional aspirations. Herma wanted to capture both the exhilaration of having made it, and the often-palpable loneliness of being the only woman in the room. She also wanted to ensure that, even as the profession and the professorate grows ever more diverse, these pioneering women were not forgotten. In this, she was, predictably, wildly successful. The book paints a searing portrait of what it was like to be a woman in the legal academy at a time when women were scarce and white men dominated both the ranks of the professorate and the student body. Her accounts of her pathbreaking predecessors make clear the indignities, both banal and profound, that these women routinely endured as the lone female on their faculties. One can only wince upon learning that for much of her career at Berkeley, Barbara Nachtrieb Armstrong was chronically under- paid relative to her male colleagues. By the same token, it is cringeworthy to read that the social worker charged with evaluating Marygold Melli for an adoption balked at the prospect of an adoptive mother who was also a full-time law professor. Of course, we can all chuckle at Melli’s pluck in dealing with the situation: she briefly surrendered her faculty position at the University of Wisconsin, only to be immediately reappointed to the faculty once the adoption was finalized.

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  Generalizability: Machine Learning and Humans-in-the-Loop

  John Nay and Katherine J. Strandburg

  Automated decision tools, which increasingly rely on machine learning (ML), are used in decision systems that permeate our lives. Examples range from high-stakes decision systems for offering credit, university admissions, and employment, to decision systems serving advertising. Here, we consider data-driven tools that attempt to predict likely behavior of individuals. The debate about ML-based decision-making has spawned an important multi-disciplinary literature, which has focused primarily on fairness, accountability and transparency. For example, the Association for Computing Machinery for the past few years has held a conference for researchers working on these issues. We have been struck, however, by the lack of attention to generalizability in the scholarly and policy discourse about whether and how to incorporate automated decision tools into decision systems. This chapter explores the relationship between generalizability and the division of labor between humans and machines in decision systems. An automated decision tool is generalizable to the extent that it produces outputs that are as correct as the outputs it produced on the data used to create it. The generalizability of an ML model depends on the training process, data availability, and the underlying predictability of the outcome that it models. Ultimately, whether a tool’s generalizability is adequate for a particular decision system depends on how it is deployed, usually in conjunction with human adjudicators. Taking generalizability explicitly into account highlights important aspects of decision system design, as well as important normative trade-offs, that might otherwise be missed. Section 1 provides the conceptual and technical basics underlying our analysis, situating the present discussion in the broader discourse about automated decision-making. It presents a simplified outline of considerations in designing and deploying a decision system, identifying various ways in which automated decision tools could be incorporated, and sketches the steps involved in creating ML models. Section 2 focuses on generalizability and its importance to debates about whether and how to incorporate automated decision tools into decision systems. It relates generalizability to the familiar “rules versus standards” discourse in legal theory and to more traditional data-driven modeling in computer science, social science, and policymaking. It analyzes facets of generalizability that are important for all data-driven models and highlights distinctive ways generalizability interacts with ML models. Section 3 analyzes how human and machine strengths and weaknesses in generalization may affect rulemaking and adjudication. We discuss design stages related to the integration of machine and human decision-making that have received little attention in policy debates and emphasize the importance of these stages to a decision system’s ultimate ability to generalize to real-world cases. In Section 4, we summarize how generalizability concerns should affect the design and implementation of automated decision tools.

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  Business Purpose and the Objective of the Corporation

  Edward B. Rock

  There is evidence that purpose-driven businesses outperform competitors. A traditional business planner’s question that arises in response to this evidence - namely, which enterprise form is best suited to a purpose-driven business? - contains deep conceptual insights. In this chapter, I explore the business planner’s question in order to draw a sharp conceptual distinction between “business purpose” and “the objective of the corporation.” “Business purpose” should be understood to be a property of business enterprises, however they are organized. “Corporate objective,” by contrast, is best understood as a characteristic of a particular enterprise form (the general corporation) and not as a description of what actual businesses do on a day-to-day basis. Confusing these two concepts under the heading “corporate purpose” limits our ability to understand what sort of organizational form is best suited to a particular enterprise, leads to confusion in the management debates over how to build successful businesses and the political debates over the social role and obligations of large scale business enterprises. In particular, purpose driven businesses are consistent with, and often may be effectively accomplished in, more than one enterprise form, including a corporate form whose objective is promoting shareholder value, depending on the channel by means of which purpose leads to performance.

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  Courts, Strategic Litigation, and Social Change

  Diana Rodríguez-Franco and César Rodríguez-Garavito

  This chapter analyses the impact of institutional adjudication by focusing on the work of the Colombian Constitutional Court. Drawing on an extended case study of the implementation of Judgment T-025 of 2004 (T25) concerning internally displaced persons, it contributes to unpacking the black box of implementation and the impact of structural rulings on the fulfilment of socio-economic rights and social change more broadly. Methodologically, T25 constitutes what Goertz and Mahoney call a ‘substantively important case’, that is, ‘an ideal type or well-known exemplar of a phenomenon’, which offers insights into the workings of adjudication and strategic litigation in similar cases not only in Latin America, but also in other jurisdictions such as India and South Africa, whose apex courts have taken up structural cases.

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  Human Rights 2030: Existential Challenges and a New Paradigm for the Field

  César Rodríguez-Garavito

  This chapter proposes disruptive interventions in human rights practice that address the existential challenges to the field: a more collaborative mode of operation, greater sense of time (both long term and short term), and heightened attention to narratives, emotions, and frames capable of connecting with larger constituencies and other social justice movements. The traditional paradigm of human rights is inadequate to deal with the simultaneity, speed, and depth of the ecological, technological, geopolitical, and socio-economic challenges of the 2020s. Against the despair of critics who announce the ‘endtimes’ of human rights and the defensiveness of traditional advocates who double down on conventional tactics, this chapter proposes ideas and strategies for the next decade that draw on lessons from other fields of knowledge and practice.

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  Privacy and Knowledge Commons

  Madelyn Rose Sanfilippo, Brett M. Frischmann, and Katherine J. Strandburg

  Conceptualizing privacy as information flow rules-in-use constructed within a commons governance arrangement, we adapt the Governing Knowledge Commons (GKC) framework to study the formal and informal governance of information flows. We incorporate Helen Nissenbaum's “privacy as contextual integrity” approach, defining privacy in terms of contextually appropriate flows of personal information. While Nissenbaum's framework treats contextual norms as largely exogenous and emphasizes their normative valence, the GKC framework provides a systematic method to excavate personal information rules-in-use that actually apply in specific situations and interrogate governance mechanisms that shape rules-in-use. After discussing how the GKC framework can enrich privacy research, we explore empirical evidence for contextual integrity as governance within the GKC framework through meta-analysis of previous knowledge commons case studies, revealing three governance patterns within the observed rules-in-use for personal information flow. Our theoretical analysis provides strong justification for a new research agenda using the GKC framework to explore privacy as governance.

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  Public Facebook Groups for Political Activism

  Madelyn Rose Sanfilippo and Katherine J. Strandburg

  The rise of social media has raised questions about the vitality of privacy values and concerns about threats to privacy. The convergence of politics with social media use amplifies the privacy concerns traditionally associated with political organizing, particularly when marginalized groups and minority politics are involved. Despite the importance of these issues, there has been little empirical exploration of how privacy governs political activism and organizing in online environments. This chapter explores how privacy concerns shape political organizing on Facebook, through detailed case studies of how groups associated with March for Science, Day Without Immigrants (“DWI”), and Women’s March govern information flows. These cases address distinct issues, while operating in similar contexts and on the same timescales, allowing for the exploration of privacy in governance of personal information flows in political organizing and Facebook sub-communities. Privacy practices and concerns differed between the cases, depending on factors such as the nature of the group, the political issues it confronts, and its relationships to other organizations or movements.

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  Meaning and Value Across the Generations

  Samuel Scheffler

  This chapter argues that our relations to our successors are richer, more varied, and more complex than is sometimes recognized. Although we cannot in any straightforward sense interact or form personal relationships with people who will live long after we have died, future generations nevertheless matter greatly to us and in a variety of ways. These facts, which reflect our underappreciated historicist sensibility, must be taken into account in developing an adequate theory of intergenerational ethics. They are also facts of great motivational significance. To ensure the survival of humanity, sufficient numbers of people must be strongly and stably motivated to solve the problems that threaten future generations, and people’s sense of moral obligation may not, by itself, be sufficiently robust or reliable to provide all the necessary motivational support. So one challenge we face, in seeking to address problems like climate change and nuclear proliferation, is to overcome this potentially disabling motivational deficit. Yet once one appreciates the complexity of our attitudes toward future generations, one can see that we have a variety of reasons for caring about the fate of our successors. These reasons provide additional motivational resources that may complement and cooperate with our distinctively moral motivations for addressing threats to future generations.

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  Temporal Neutrality and the Bias Toward the Future

  Samuel Scheffler

  The conviction that rationality requires an equal concern for all parts of one’s life marks a rare point of agreement among leading Kantian and utilitarian philosophers. John Rawls disagrees with Henry Sidgwick about many things, but the rationality of temporal neutrality is not one of them. In A Theory of Justice, Rawls makes his agreement with Sidgwick on this point explicit. He writes: “In the case of an individual the avoidance of pure time preference is a feature of the rational. As Sidgwick maintains, rationality implies an impartial concern for all parts of our life. The mere difference of location in time, of something’s being earlier or later, is not in itself a rational ground for having more or less regard for it. Of course, a present or near future advantage may be counted more heavily on account of its greater certainty or probability, and we should take into consideration how our situation and capacity for particular enjoyments will change. But none of these things justifies our preferring a lesser present to a greater future good simply because of its nearer temporal position.” Sidgwick, for his part, thinks that the principle “of impartial concern for all parts of our conscious life,” as he calls it, represents a commonsense consensus. He says that an “equal and impartial concern for all parts of one’s conscious life is perhaps the most prominent element in the common notion of the rational—as opposed to the merely impulsive—pursuit of pleasure.” On this last point, at least, Sidgwick was almost certainly mistaken. The principle of impartial concern may sound commonsensical, but most of us have robust preferences that are inconsistent with it. That is one lesson of Derek Parfit’s discussion of temporal bias in Reasons and Persons.

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  Punitive Damages Transformed into Societal Damages

  Catherine M. Sharkey

  Whether termed civil penalties or statutory multiplied damages, ‘supra-compensatory’ damages are of increasing theoretical and practical interest not only in the United States, but also abroad, notably in France and Australia. Notwithstanding criticisms directed at the controversial remedy of punitive damages and more generally at the notion of punishment within civil law, there is a growing recognition that some form of supra-compensatory remedy may be necessary to deter certain forms of conduct on the part of actors, especially corporations. Around the world, ‘supra-compensatory’ damages seemingly arise phoenix-like from the ash heap of increasingly maligned ‘punitive’ damages. There is a general consensus that punitive damages are intended ‘to punish and to deter’. But this consensus masks deep and significant disagreements in terms of whether these purposes are, or should be, one and the same—namely retributive punishment whose corollary effectuates deterrence—or instead separable, with deterrence holding its own as a non-retributive purpose distinct from punishment. Courts and commentators typically use the language of retributive punishment when describing the aims of punitive damages and the relevant features of the remedy. But at the same time, there is increasing recognition that the separate aim of deterrence is often at play, especially in situations where the defendant’s conduct has caused widespread societal harm. Courts and commentators struggle because of this alleged mismatch—namely, the awkward fit between the retributive punishment connotations of ‘punitive’ damages to serve societal deterrence purposes. The struggle is two-fold. First, punitive damages seem especially troubling because notions of retributive punishment, common in criminal law, seem wholly out of place in the civil sphere. For this reason, when courts award punitive damages they are inclined to place various limitations on the remedy, with the goal of avoiding ‘disproportionate punishment’. Second, notions of societal deterrence seem out of place in private law focused on bilateral interactions between the parties involved in the litigation. The notion of supra-compensatory damages for societal deterrence purposes injects a public regulatory purpose into private law. This dimension is significant where there are third-party effects or externalised harms to others stemming from bilateral interactions between defendants and plaintiffs. And it is also significant with respect to corporate wrongdoing. Statutory damages recognise this public interest element; common law courts have experienced more difficulty fashioning remedies accordingly. My aim in this chapter is to interrogate what courts are saying—typically using the language of retributive punishment—when they might actually be doing something else—namely, effectuating societal deterrence. As a descriptive matter, I demonstrate that embedded within punitive damages is a component of damages designed to deter the tortfeasor. But my aim is also normative and aspirational – namely, what should courts be doing to effectuate societal deterrence? Building on prior work, I explore various statutory and judicial mechanisms that could transform punitive damages into societal damages. I consider whether the case for conceptualising punitive damages as a societal remedy is especially compelling in certain realms characterised by statutorily defined violations, such as in the consumer protection realm. Moreover, I explore how a reconceptualization of punitive damages as a societal remedy could have far-reaching effects both in terms of the evolution of US doctrine, but also influencing law reform efforts in various other countries. Sections II and III lay the necessary conceptual foundation by, first, disaggregating punitive damages by functional purpose and, second, setting forth theoretical constructs and practical factors relevant for achieving societal deterrence. Once the societal deterrence goal is acknowledged, however, the spectre of ‘windfall’ gains to the plaintiff looms large. It would be sheer coincidence if the amount needed to deter the defendant exactly equaled the amount of the plaintiff’s losses. Section IV (the heart of the chapter) presents societal damages funds—remedial funds created alternately by statute, common law courts, or private parties effectuating settlements—as an apt response to the injection of the public societal deterrence purpose within the framework of a private civil lawsuit. Finally, section V concludes by suggesting the far-reaching implications for debates regarding constitutional excessiveness review, insurability and vicarious liability for punitive damages, once punitive damages are transformed (in whole or in part) into societal damages.

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  Regulatory and Medical Aspects of DTC Genetic Testing

  Catherine M. Sharkey, Xiaohan Wu, Michael F. Walsh, and Kenneth Offit

  The recent FDA marketing authorizations granted for testing for mutations associated with hereditary breast and colon cancer, as well as pharmacogenomic susceptibilities, provide an opportunity to re-examine the medical as well as regulatory underpinnings of DTC genetic testing. In this chapter, we first examine the historical emergence of enabling technologies that have provided for the availability of DNA sequence information on a broad scale, the efforts by the medical community to incorporate these advances into models of “precision” or “personalized” medicine, and the risks and benefits of offering access to DNA germline sequence analysis outside of the traditional medical model. We then turn to the current and proposed regulatory schemes to provide oversight over DTC genetic testing, with a focus on the role of the FDA as an information regulator and guardian of public health and safety.

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  Foreword

  Bryan A. Stevenson

  Chasing Me to My Grave presents the late artist Winfred Rembert's breathtaking body of work alongside his story, as told to Tufts Philosopher Erin I. Kelly. Rembert grew up in a family of Georgia field laborers, joined the Civil Rights Movement as a teenager, survived a near-lynching at the hands of law enforcement, and spent seven years on chain gangs. There he learned the leather tooling skills that became the bedrock of his autobiographical paintings. Years later, encouraged by his wife, Patsy, Rembert brought his past to vibrant life in scenes of joy and terror, from the promise of southern Black commerce to the brutality of chain gang labor. Vivid, confrontational, revelatory, and complex, Chasing Me to My Grave is a searing memoir in prose and painted leather that celebrates Black life and summons readers to confront painful and urgent realities at the heart of American society.

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  Foreword

  Bryan A. Stevenson

  The inspiring story of activist and poet Ian Manuel, who at the age of fourteen was sentenced to life in prison. He survived eighteen years in solitary confinement—through his own determination and dedication to art—until he was freed as part of an incredible crusade by the Equal Justice Initiative. The United States is the only country in the world that sentences thirteen- and fourteen-year-old offenders, mostly youth of color, to life in prison without parole. In 1991, Ian Manuel, then fourteen, was sentenced to life without parole for a non-homicide crime. In a botched mugging attempt with some older boys, he shot a young white mother of two in the face. But as Bryan Stevenson, attorney and executive director of the Equal Justice Initiative, has insisted, none of us should be judged by only the worst thing we have ever done. Capturing the fullness of his humanity, here is Manuel’s powerful testimony of growing up homeless in a neighborhood riddled with poverty, gang violence, and drug abuse—and of his efforts to rise above his circumstances, only to find himself, partly through his own actions, imprisoned for two-thirds of his life, eighteen years of which were spent in solitary confinement. Here is the story of how he endured the savagery of the United States prison system, and how his victim, an extraordinary woman, forgave him and bravely advocated for his freedom, which was achieved by an Equal Justice Initiative push to address the barbarism of our judicial system and bring about “just mercy.” Full of unexpected twists and turns as it describes a struggle for redemption, My Time Will Come is a paean to the capacity of the human will to transcend adversity through determination and art—in Ian Manuel’s case, through his dedication to writing poetry.

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  Adjudicating with Inscrutable Decision Rules

  Katherine J. Strandburg

  Experts from disciplines that range from computer science to philosophy consider the challenges of building AI systems that humans can trust. Artificial intelligence-based algorithms now marshal an astonishing range of our daily activities, from driving a car ("turn left in 400 yards") to making a purchase ("products recommended for you"). How can we design AI technologies that humans can trust, especially in such areas of application as law enforcement and the recruitment and hiring process? In this volume, experts from a range of disciplines discuss the ethical and social implications of the proliferation of AI systems, considering bias, transparency, and other issues. The contributors, offering perspectives from computer science, engineering, law, and philosophy, first lay out the terms of the discussion, considering the "ethical debts" of AI systems, the evolution of the AI field, and the problems of trust and trustworthiness in the context of AI. They go on to discuss specific ethical issues and present case studies of such applications as medicine and robotics, inviting us to shift the focus from the perspective of a "human-centered AI" to that of an "AI-decentered humanity." Finally, they consider the future of AI, arguing that, as we move toward a hybrid society of cohabiting humans and machines, AI technologies can become humanity's allies.

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  The Rule of Law as an Essentially Contested Concept

  Jeremy Waldron

  That a concept in common use, such as the rule of law, may be called essentially contested is not a criticism of that concept. Quite the contrary: “essentially contested” is a theoretical designation that draws attention to the way in which arguments about the meaning of a given concept contribute to our understanding and evaluation of the systems, practices, and actions to which the concept is applied. It is true that some conceptual contestation just bogs us down in confusion. But not always. The philosopher who can claim to have been the first to draw essential contestability to our attention—W. B. Gallie—cited the concept of democracy as one of his examples and said that a key question to ask was whether “continuous competition for acknowledgement between rival uses of the popular concept of democracy seems likely to lead to an optimum development of the vague aims and confused achievements of the democratic tradition?” If the answer is “Yes,” then democracy is an essentially contested concept and we should not despair of its use just because there is no agreement about definitions. So it is also, we can argue, with the rule of law. There are many different definitions of the rule of law and none of them can claim to be canonical. But contestation between these rival conceptions works to enrich rather than impoverish our understanding of the heritage that has been associated over the centuries with legal and political uses of the rule of law. We are in a better position to deploy the rule of law as a political ideal than we would have been had it come to us with a single uncontested definition. It is worth mentioning this at the outset because the idea of an essentially contested concept has sometimes been understood pessimistically, as an imperfection that takes us in the direction of relativism. “Essentially contested” may be taken to mean “very, very contested”—as though “essentially” were just an intensifier—a characterization that is supposed to steer clear thinkers away from the concept in question. Hopefully, we can show that this understanding is a mistake, and that drawing attention to the “essential contestedness” of the rule of law is not a reason for condemning the concept, but a way of showing how the heritage of disputation associated with it enriches and promotes some or all of the purposes for which the rule of law is cited in legal and political argument.

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  A Dialogical Epilogue

  Joseph H. H. Weiler

  In this Dialogical Epilogue, I address a series of both general and specific questions to some of the contributors of this volume. The intent is to seek clarification on or even contest one or more propositions presented in the various chapters. In the role of a “Consul of the Readers” I enter into a conversation with the book’s authors to discuss some of the fundamental questions to which Sentenza 238/2014 gives rise and that have, at best, received only indirect answers in the various chapters. I believe answering them will enhance the value of each contribution and of the book as a whole.

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  Not on Bread Alone Doth Man Liveth (Deut. 8:3; Mat 4:4): Some Iconoclastic Views on Populism, Democracy, the Rule of Law and the Polish Circumstance, in Defending Checks and Balances

  Joseph H. H. Weiler

  Polarization in today’s politics, pre- and post COVID, transcends nations, states regions and continents. It’s a feature of politics which, in and on itself, when played to extremes by demonizing one’s opponents, it threatens democracy itself—since it frays the demos some cohesion of which is necessary for the legitimacy of majoritarianism, one of the pillars of national democracies. Its lexical manifestation is to be found with expressions such as ‘traitors’ or ‘not real’ Americans, Italians, Israelis—take your pick and fill in the gap. It has, lamentably in my view, a spillover effect also into the academic world of scholarship. A word of criticism of, say, the European Court of Justice instantly brands you a ‘Eurosceptic’ and one of ‘them’. To speak of Universal Values, casts you as an enemy of this or that national cause. This is not to say, not at all, that one cannot bring to one’s scholarship a fully engaged normative and ethical commitment, especially in the field of law which has, or should have, at its roots a commitment to justice. But it militates against careful listening, complex reasoning and understanding and more fine grained normative judgments. Justice is oftentimes not black and white. It is particularly so when it comes to dealing with the phenomenon of Populism which has moved from the fringe to the center of politics. Trying to understand Populism is not akin to justifying it.

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  The Targeted Killing of Jesus Christ

  Joseph H. H. Weiler

  Targeted killings are usually defined as extrajudicial executions, that is, of a person—guilty or not—without a trial. But is a ‘rigged’ trial not simply another form of a targeted killing? If so, was then the crucifixion of Christ, a form of a targeted killing? Even if we take the Gospel accounts as ‘Gospel truth’ (no serious historian does), was the trial of Jesus fair? Was his conviction for blasphemy before the Sanhedrin justified? Tomes and reams have been written about this, the most famous trial and execution in the history of the West. This essay is but an appetizer to that rich literature.

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  The Committee on Economic, Social and Cultural Rights

  Philip G. Alston

  This chapter evaluates the Committee on Economic, Social and Cultural Rights. The Committee has devoted, and seems likely to continue to devote, much of its energies to streamlining and refining procedures and to laying the foundations upon which a serious effort can be made to promote respect for economic, social and cultural rights. In many respects, the Committee has confronted problems which are common to all of the treaty bodies. In other respects, however, the challenges that confront it and the context in which it must work are significantly different from those of the other committees. Among the many factors that tend to distinguish its task are: the lack of conceptual clarity of many of the norms reflected in the Covenant on Economic, Social and Cultural Rights; the ambivalence of most governments towards economic, social and cultural rights; and the absence of national institutions specifically committed to the promotion of economic rights qua rights.

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  Introduction: Appraising the United Nations Human Rights Regime

  Philip G. Alston and Frédéric Mégret

  This introductory chapter provides an overview of the UN rights regime, which has changed dramatically in almost every respect. In normative terms, major new instruments have been adopted addressing the situation of persons with disabilities, disappearances, indigenous peoples, and many other groups, and the rights of LGBTI persons are now squarely on the agenda from which they were then almost entirely absent. In terms of staff, the relatively small Center for Human Rights has been replaced by an Office of the High Commissioner for Human Rights. These dynamics illustrate the extent to which the place of human rights within the broader constellation of global governance is susceptible to constant change. The chapter then considers what is, or should be, involved in the process of evaluating or appraising the effectiveness of the UN human rights regime as a whole and of individual human rights organs.

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  Epilogue: 'Convergence' Is a Many-Splendored Thing

  José E. Alvarez

  The author reflects on the conclusions of the contributors to the edited volume and, based on his prior research, provides his own perspective on the main topic. His prior analysis of 395 ISDS rulings—and how they reference WTO law and European human rights law—throws cold water on the proposition that the trade and investment regimes, which some see as wrongly separated at birth, are converging around substantive common principles, standards or rules. Firstly, if significant trade-investment law convergence exists, it is not occurring through explicit reliance on WTO law by ISDS arbitrators. Secondly, the references to WTO law that he finds were narrow not only with respect to the numbers of IIAs involved; they were narrow with respect to the kinds of issues on which trade law was deemed relevant. The author furthermore acknowledges the limitations of citation studies, such as those conducted by him, as the two regimes may engage in other ways, apart from what happens at the final public stage of formal dispute settlement.

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  An Unscientific Postscript

  Kwame Anthony Appiah

  I am three years older than Ghana, where I grew up, and my father was very active in the movements that brought us our independence. My earliest memories of him are as a parliamentarian, working in the post-independence legislature, deeply committed, as a lawyer as well as a politician, to constitutional government. And make no mistake about it, my father loved Ghana. His autobiography was subtitled The Autobiography of an African Patriot—and, although he cherished Africa, which was, as a Pan-Africanist, his patria as well, his patriotism was fundamentally Ghanaian. At its heart was a commitment to self-government with a constitution that gave us rights and made us equal under the law. In my teens, after a period as a political prisoner, he specialized in taking the government to court to secure the rights of others. Since the first task of the state after empire was to try to expand welfare provision as well, his nationalism had the elements identified in this book as liberal: the state had to secure order for us, grant and protect our equal rights, and guarantee a basic level of education and welfare to us all. Redistributive solidarity was definitely an important part of the picture. The ‘us’ here was definitely not an ethnic ‘us’. For my father’s generation, one of the great challenges of independence was to build a united nation that nevertheless recognized and honoured our many ‘tribes’, as we called them, the various peoples the colonial state had brought together. Our diverse languages and cultural and political traditions produced a nation of enormous, often overlapping, forms of diversity. Like the other states on the Gulf of Guinea, we had many Muslims in the north, and a great diversity of Christians all over, reflecting the diverse missionary adventures of the region. But there was a long-established Muslim population in Kumasi, the capital of Asante, our hometown, which is in the centre of the country, as in the nation’s capital, Accra, on the coast. And there were countless shrines to hundreds of spirits in the multiple older customs of our country. We were definitely a nation of many religious traditions as well.

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  Foreword

  Kwame Anthony Appiah

  A merchant's remarkable travel account of an African kingdom Muḥammad al-Tūnisī (d. 1274/1857) belonged to a family of Tunisian merchants trading with Egypt and what is now Sudan. Al-Tūnisī was raised in Cairo and a graduate of al-Azhar. In 1803, at the age of fourteen, al-Tūnisī set off for the Sultanate of Darfur, where his father had decamped ten years earlier. He followed the Forty Days Road, was reunited with his father, and eventually took over the management of the considerable estates granted to his father by the sultan of Darfur. In Darfur is al-Tūnisī's remarkable account of his ten-year sojourn in this independent state, featuring descriptions of the geography of the region, the customs of Darfur's petty kings, court life and the clothing of its rulers, marriage customs, eunuchs, illnesses, food, hunting, animals, currencies, plants, magic, divination, and dances. In Darfur combines literature, history, ethnography, linguistics, and travel adventure, and most unusually for its time, includes fifty-two illustrations, all drawn by the author. In Darfur is a rare example of an Arab description of an African society on the eve of Western colonization and vividly evokes a world in which travel was untrammeled by bureaucracy, borders were fluid, and startling coincidences appear almost mundane.

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  Self-Creation or Self-Discovery?

  Kwame Anthony Appiah

  There are few philosophical questions to which Charles Taylor has not devoted his attention. His work has made powerful contributions to our understanding of action, language, and mind. He has had a lasting impact on our understanding of the way in which the social sciences should be practised, taking an interpretive stance in opposition to dominant positivist methodologies. Taylor's powerful critiques of atomistic versions of liberalism have redefined the agenda of political philosophers. He has produced prodigious intellectual histories aiming to excavate the origins of the way in which we have construed the modern self, and of the complex intellectual and spiritual trajectories that have culminated in modern secularism. Despite the apparent diversity of Taylor's work, it is driven by a unified vision. Throughout his writings, Taylor opposes reductive conceptions of the human and of human societies that empiricist and positivist thinkers from David Hume to B.F. Skinner believed would lend rigour to the human sciences. In their place, Taylor has articulated a vision of humans as interpretive beings who can be understood neither individually nor collectively without reference to the fundamental goods and values through which they make sense of their lives. The contributors to this volume, all distinguished philosophers and social theorists in their own right, offer critical assessments of Taylor's writings. Taken together, they provide the reader with an unrivalled perspective on the full extent of Charles Taylor's contribution to modern philosophy.

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  The Potential Promise and Perils of Introducing Deferred Prosecution Agreements Outside the U.S.

  Jennifer H. Arlen

  Countries around the world are reforming their corporate criminal liability regimes to introduce deferred prosecution agreements (DPAs). DPAs can help deter crime when properly structured. But otherwise they can increase the risk of corporate misconduct. This chapter identifies the steps countries need to take in order to use DPAs to deter corporate crime. It then evaluates the recent reforms adopted in the U.K. and France. Both reforms are a significant step forward, yet further reform is needed. Neither the U.K. nor France can effectively deter corporate crime because both countries have excessively restrictive corporate criminal liability laws that allow companies to profit from many crimes. These laws also undermine efforts to use DPAs to induce firms to self-report or cooperate. France’s reforms raise particular concern because French law provides no genuine incentive to self-report and appears to let companies enter into DPA-like agreements without promptly and fully cooperating with authorities. In addition, concerns remain about whether France is committed to bringing the individuals responsible for corporate crimes to justice. As a result, French DPAs could be counter-productive if they operate primarily to reduce sanctions imposed on companies without enhancing French prosecutors’ ability to sanction those responsible for corporate misconduct.