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  The Concept of Compliance as a Function of Competing Conceptions of International Law

  Benedict Kingsbury

  “Compliance” is one of the central concepts in current and proposed research projects using social science methods to study the effects and significance of international law. Discussion of compliance often proceeds as if the concept is largely shared, i.e. there is a shared understanding that compliance is adequately defined as conformity of behavior with legal rules, and agreement that the real problems are about such matters as measuring, monitoring and improving compliance, and simultaneous optimization of levels of compliance and rigor of the relevant standards. This chapter makes the contrary argument that the concept of compliance with law does not have, and cannot have, any meaning except as a function of prior theories of the nature and operation of the law to which it pertains. Compliance with law is not a free-standing concept, but derives meaning and utility from theories of law, so that different theories of law lead to significantly different notions of what is meant by compliance. Thus work on compliance with law cannot stand on its own, but must depend on a stipulated or shared theory of law. In the case of international law, the elements of the concept of law which must be specified to give meaning to the concept of compliance are deeply contested and are far from being universally shared. There is also likely to be considerable variance in concepts of national law that are relevant to compliance with international law. Concepts of compliance depend upon understandings of the relations of law, behavior, objectives, and justice. These relations are of central importance to the real-world problems with which international lawyers are habitually concerned, and must be theorized if there is to be any theory of compliance. The purpose of this chapter is to challenge the tendency in the existing literature to view compliance in an under-theorized way simply as “correspondence of behavior with legal rules.” This tendency has an eminently intelligible basis combining a particular theoretical view of law and a practical concern to get on with the important task of producing empirical studies of compliance. The theoretical view is that law can properly be defined and understood as a body of rules. The logical corollary is that a reasonable degree of conformity between these rules and actual behavior is necessary to an efficacious legal system, so that recurrent and widespread nonconformity with rules would usually call into question the existence of law. Given these theoretical premises, the first practical task is to determine whether, as is often asserted by international lawyers, most states and other subjects of international law conform to most legal rules most of the time. We have impressions which may rise to the level of “anecdata,” but in many areas we certainly do not have systematic studies to show whether or not most states conform to most international law rules most of the time, and such studies as we do have show that impressions based on anecdata are not necessarily reliable. While raw data is increasingly available on responses by states to some types of international decisions, especially where a monitoring or supervisory body exists or where the decisions confer particular benefits on other actors who perform monitoring functions, the dearth of good empirical studies of correspondence between state behavior and international legal rules and decisions is a serious obstacle to adequate understanding and evaluation of the international legal system. Likewise, systematic work on the results of different modalities for promoting correspondence of behavior to international rules is patchy, although domestic compliance studies have demonstrated the practical importance for policy goals and the unanticipated consequences of different modalities. The much-needed empirical work on compliance is beginning to appear in increasing quantity, involving case studies, large-n series, and other methodologies. Yet, as those engaged in this work readily acknowledge, the methodological obstacles to this inquiry are severe. Characterization in marginal cases is rendered difficult by the problems international lawyers address daily: differences of opinion as to interpretation, disputes and uncertainty as to the status and authority of different sources of law, issues of opposability and excuses precluding responsibility. Recent studies of environmental and human rights norms show checkered patterns of conformity and non-conformity with rules, and highlight the differences between conduct prescribed by rules and conduct and long-term policies necessary to meet the underlying objectives of the particular international regime as well as other important policy goals. These and other studies show that the assumption that conformity and non-conformity are binary is not an adequate reflection of international practice, in which degrees of conformity or non-conformity and the circumstances of particular behavior often seem more important to the participants. But even if we knew how far state behavior conformed with international norms, we would not necessarily have an account of the causal relations of law and behavior, nor would we be much further toward evaluating legal rules against propositions about justice. Although empirical work is vital, it must depend for its meaning and implications on further development of the theory of international law as regards compliance. Defense of a particular theoretical approach would be too ambitious for this chapter. The modest aim is to sketch a sufficient variety of competing concepts of law, with their divergent implications for notions of “compliance,” to establish that much is lost by treating the basic concept of compliance as unproblematic, and to show that choosing and deploying a theory (or interlocking theories) of law is essential to articulating and defending a concept of compliance.

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  The Messages of Legal Education

  Sylvia A. Law

  I am always pleased when people I like and respect decide to go to law school. The study and practice of law can illuminate our understanding of the collective arrangements that define our individual and social life. Legal training enables people to support themselves doing work that includes rich human relationships and intellectual challenge. Legal skills can help realize our visions of a just society. Although these possibilities make the study and practice of law attractive, the reality of practice is often different. Most lawyers report that they are unhappy with their work. Many work for the relatively privileged to preserve a status quo in which material wealth and political power are distributed unfairly and everyone is oppressed by hierarchical and alienated relationships. One fact, more than any other, influences the personal and professional choices facing lawyers and law students today and the collective choices that we face as a society. It is that we live in a world in which there are gross disparities in the distribution of money, political power, and personal opportunity for significant life choices. In the United States, the richest fifth of the population receives 40 percent of the personal income, whereas the poorest fifth receives 5 percent of the personal income. On a world scale the disparities are greater still. Unearned wealth, political power, and personal power over important life choices are distributed even more unevenly than income. Government policies of the 1980s and 1990s have increased the wealth of the rich and insecurity of the majority. Despite the gross disparities in the distribution of resources and opportunities, Americans, and increasingly the world, share a common culture. We all see the same ads urging us to buy the same products. We all have similar desires to have those things that we believe will make life more beautiful and comfortable. We share common desires for interesting, creative, and useful work for ourselves and our children. Because we share a common culture, we feel the disparities in wealth, power, and opportunity acutely. Gross inequality in the distribution of material resources produces a situation of insecurity for everyone. People at the bottom are the most insecure; they face the daily uncertainty of not knowing where the next meal will come from or whether they can keep a roof over their children's heads. Any unexpected expense is a disaster. Most “middle-income” Americans also face economic uncertainty. Jobs that were once secure and well-paying are now disappearing as multinational corporations seek the highest profits, without regard to the consequences for jobs or communities. In 1993, almost one-fifth of Americans under age sixty-five had no health insurance. In 1995, that number was increased dramatically when Congress slashed the Medicaid program for the poor and Medicare for the aged. The disparity is growing wider: A typical chief executive of a large American company earns 120 times more than a typical manufacturing worker, compared to a mere 35 times more in 1974. Even the rich are insecure. God forbid that you should not make it to the top. Or that, having made it to the top, you should somehow make a misstep that will cause you to slip from a position of privilege. The disparity in the distribution of wealth and power, particularly in a time of deep economic insecurity, is a major factor motivating people to go to law school. These disparities also pose a central challenge to our social and legal arrangements. Are democracy, equality, personal security, self-actualization, or solidarity possible in a world in which material goods and political power are distributed in such a wildly uneven way? Are these disparities the inevitable cost of material growth, progress, and innovation? Unfortunately, thought about the legal profession and legal education often mystifies rather than illuminates our understanding of these social relations, and increases, rather than decreases, perceptions of personal insecurity. This can be illustrated by examining, first, the way in which legal education is organized, particularly in the first year of law school; second, the intellectual content of the law itself; and third, the lessons of legal ethics for a lawyer's choice of life work and for the attorney-client relationship.

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  Neighborhood Effects and Federal Policy

  Jeffrey S. Lehman and Timothy M. Smeeding

  In this chapter, we reflect on what the social science research included in this volume implies for federal policy. How should Congress react to this new learning about neighborhood effects on children? What direction should policy makers take from this new scholarship? We approach these questions slowly and carefully, because they subsume some very difficult general questions about the relationship between academic scholarship and the domain of public policy, and about the relationship of federal policy to children in prospering, as well as failing, neighborhoods. By making these general questions explicit in the first portion of this chapter, we hope to make it easier to grapple with the specific questions later on.

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  The Plaintiffs’ Attorney’s Role in Class Action and Derivative Litigation: Economic Analysis and Recommendations for Reform

  Jonathan R. Macey and Geoffrey P. Miller

  Over the past decade a number of scholars, including most prominently Professor John Coffee, have recognized that the single most salient characteristic of class and derivative litigation is the existence of “entrepreneurial” plaintiff’s attorneys. Because these attorneys are not subject to monitoring by their putative clients, they operate largely according to their own self-interest, subject only to whatever constraints might be imposed by bar discipline, judicial oversight, and their own sense of ethics and fiduciary responsibilities. In this section we begin by describing the economic rationale for class action and shareholder’s derivative lawsuits. We then discuss the role of the entrepreneurial attorney in such lawsuits by placing it in the context of the economic theory of agency, and by contrasting it with the role of the attorney in standard litigation in which the client exercises a substantial degree of influence over the attorney’s action.

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  Is Deposit Insurance Inevitable? - Lessons from Argentina

  Geoffrey P. Miller

  This chapter explores the decision by the Argentine government to abolish deposit insurance, and its subsequent decision to reestablish a form of deposit insurance. Prior to 1991, the Argentine banking system operated under a regime of optional, explicit deposit insurance, coupled with extensive implicit deposit insurance in the form of central bank assistance to failing banks. In 1991 and 1992, Argentina reversed this policy by repealing the country's deposit insurance program and attempting to convince financial markets that it would not under any circumstances rescue a failing bank. In 1995, in the face of a forthcoming election and a severe economic crisis sparked by the Mexican peso devaluation of December 1994, the Argentine government reinstituted a form of deposit insurance in an effort to stave off an all out bank panic. The decision to reestablish deposit insurance appears inconsistent with repeated assurances from high-level officials to the effect that the Argentine government would not under any circumstances bail out depositors in a failing bank. Beginning in December 1994, Argentina's banking system entered a major period of instability triggered by the peso devaluation and subsequent economic crisis in Mexico - the so-called tequila effect in which the Mexican problems spread out to other countries in the region and even elsewhere in the developing world. The connections between the Mexican crisis and the loss of investor confidence in Argentina are somewhat difficult to determine. Argentina does not maintain particularly close economic ties with Mexico, so that the economic problems in Mexico, while they might have some direct adverse impact on the Argentine economy, were not sufficiently serious to trigger a major financial panic. Moreover, the Argentine economy was organized quite differently from Mexico's, and did not appear vulnerable to the kind of problems that plagued the latter country (for an optimistic account, see República Argentina, 1995). While the Mexican central bank had inflated the money supply in 1994 as a means of enhancing the ruling party's election prospects, the money supply in Argentina had remained stable or even fallen. Prices in Argentina were stable, and the Mercosur trade pact with Brazil and Uruguay promised further economic growth.

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  The True Story of Carolene Products

  Geoffrey P. Miller

  United States v. Carolene Products Corporation, as any second year law student knows, contains perhaps the most renowned footnote in constitutional history. In famous footnote four Justice Stone, writing for himself and three others, suggested that the Court apply relatively strict scrutiny to legislation interfering with the political processes or affecting the rights of “discrete and insular minorities.” Because the Court had but recently abandoned strict scrutiny of economic regulation, the footnote is seen as paving the way for a two-tiered system of constitutional review in which individual rights are afforded greater protection than so-called economic liberties. Today, a half-century later, the footnote is widely honored as a cornerstone of constitutional law, a “great and modern charter for ordering the relations between judges and other agencies of government.” The footnote has spawned noteworthy scholarship; and its seminal ideas have been expanded in works by John Hart Ely and others. The plaudits accorded the footnote are matched by the disregard of the case itself. The facts were not the stuff of great decisions. At issue was the constitutionality of the 1923 federal “Filled Milk Act,” a statute that prohibited the shipment in interstate commerce of skimmed milk laced with vegetable oil. The case appeared to be a routine challenge to an unimportant economic regulation, with the outcome foreordained by recent opinions sustaining other forms of economic regulation. Commentators have denigrated its significance, finding it “unremarkable,” “straightforward,” even “easy.” The lack of attention to the case itself is unfortunate, because it is interesting in its own right, and because its facts shed light on the meaning of the footnote. The statutes upheld in the case was an utterly unprincipled example of special interest legislation. The purported “public interest” justifications so credulously reported by Justice Stone were patently bogus. If the preference embodied by this statures was not “naked,” it was clothed only in gossamer rationalizations. The consequence of the decision was to expropriate the property of a lawful and beneficial industry; to deprive working and poor people of a healthful, nutritious, and low-cost food; and to impair the health of the nation’s children by encouraging the use as baby food of a sweetened condensed milk product that was 42 percent sugar. It is difficult to believe that members of the Court were unaware of the true motivation behind this legislation. That they should nonetheless vote to uphold the statute strongly suggested that all bets were off as far as economic regulation was concerned. Footnote four, in this light, can be seen as indicating that the Court intended to keep its hands off economic regulation, no matter how egregious the discrimination or patent the special interest motivation. Rational basis scrutiny of the sort suggested in West Coast Hotel could not be taken seriously if it precluded judicial protections of individual liberties. By separating economic and personal liberties, Justice Stone suggested that the Court might really mean what it said about deference to the legislative will in economic cases. Two-tiered scrutiny did much more than facilitate the creation of preferred constitutional categories entitled to exacting judicial review. It also freed the forces of interest group politics from the stumbling block of the federal courts. Carolene’s legacy is not only Brown v. Board of Education; it is also the unrivaled primacy of interest groups in American politics of the last half-century. Fortunately for the nations’ consumers, the Carolene Products case itself is no longer the law. Go to any supermarket and you will find filled milk for sale under trade names such as “Milnot” or “Meloream.” Some firms, including the aptly-named Defiance Milk Products Company of Defiance, Ohio, are boldly marketing the product under its original colors. The Supreme Court’s decision in Carolene Products has been overruled, and the statute declared to violate substantive due process. Yet while the injustice of the case itself has been remedied, the footnote remains.

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  Lewis F. Powell, Jr.

  Burt Neuborne

  This work examines the biographical facts of each US Surpeme Court justice's life, including his or her background in the law, the paths that led each one to the Supreme Court, and each justice's major decisions, and how these decisions reveal an underlying legal philsophy.

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  The Long-Run Effects of a Residential Property Tax and Local Public Services

  A. Mitchell Polinsky and Daniel L. Rubinfeld

  The long-run effects of a residential property tax and local public services are analyzed in the context of an urban spatial model. An endogenous labor market allows the local wage rate to adjust, in conjunction with residential and business land prices, in response to local fiscal changes.

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  Federalism as a Device for Reducing the Budget of the Central Government

  John M. Quigley and Daniel L. Rubinfeld

  The U.S. Constitution incorporates built in tensions of economic federalism, enumerating certain powers for the central government while reserving others for the state. The historical resolution of these tensions has a complex political and economic history. Given the substantial inertia that is built into the U.S. federalist system, it is not surprising that the current set of economic responsibilities has evolved only slowly during the past two centuries. The historian Harry Scheiber (1966) has identified four stages in the development of federalism in the United States: (1) a period of dualism (1790 1860) in which the states and the central government had comparable responsibilities; (2) a period of centralizing federalism (1860 1933), when federal responsibilities grew; (3) a time of cooperative federalism (1933 1964), which marked a substantial growth in social programs arising out of the Great Depression; and (4) a period of creative federalism (since 1964) in which the federal government has taken an active role in the problems of state and local governments. The period of creative federalism was spurred by the support for programs of revenue sharing from the federal government to the states by economists Walter Heller and Joseph Pechman (Perloff and Nathan 1968). In today's environment of large budgetary deficits, it is difficult to imagine that a crucial argument for a broad based program of unrestricted grants to states was the fear of "fiscal drag"—that the automatic growth of federal revenues under a progressive personal income tax would otherwise lead to excessive fiscal surpluses. The Heller Pechman plan, substantially modified by Congress and the executive, ultimately became the General Revenue Sharing Program, the heart of President Nixon's New Federalism in 1972. A decade later, in January 1982, it appeared that a new period in federal relations would begin when the Reagan administration proposed to reverse the trend toward the centralization of financing of government services The Reagan proposal sought to return to states and localities all financial responsibility for income redistribution (Aid to Families with Dependent Children, i.e., AFDC, and food stamps) as well as control over more than sixty federal programs targeted to low income households, including education, community development (e.g., water and sewer programs), transportation, and social services. This was to be accomplished in part by a cut in specific grant programs and in part by the consolidation of other programs into a single block grant program. Perhaps most important, the Reagan federalism initiatives forced a serious rethinking of the evolutionary path of the public economy, which had moved financial and managerial responsibility for public goods and services steadily up to the national level. Although the core reforms of Reagan's New Federalism proposal never became law, the Reagan budgets significantly curtailed the levels of federal support for state and local governments. This curtailment was bifurcated: federal support for spending on local goods and services declined dramatically, but support for distributional programs, especially those involving health care, increased substantially over the past decade. The issues that have divided the Clinton administration and the 104th Congress mirror those of the Reagan initiative in many ways. Rather than marking a reversion to the New Federalism of the 1980s, the current debate may well signify the beginning of a new period of retrenchment in American federalism. The debate puts the presumptions of our entire federalist system under scrutiny and asks whether the current structure of responsibilities is appropriate now. A coherent discussion of the issues that surround the federalism debate requires a well articulated view of the goals of a federalist economy. Section 2.1 provides an economist's perspective of the essential ingredients. On the basis of economic efficiency, we suggest that governmental functions should be centralized if the decentralized alternative would create substantial spillovers that are unlikely to be remedied through bargains reached among the affected governments. Further, to the extent that externality creating competition rather than cooperation is the rule, the imposition of national standards can be desirable. Finally, we suggest that a third nonefficiency criterion can be important. When a substantial portion of the population believes that certain fairness principles should apply to all, the imposition of centralized national norms, affecting all citizens, may be appropriate. Section 2.2 discusses some normative implications of our federalism perspective for intergovernmental fiscal relations. We explain why federalism principles suggest a strong, but not necessarily exclusive, role for the central government in overseeing distributional programs. We believe that the current federalism debates involve two distinct but related features. In section 2.3 we discuss the first issue: the growth of mandates and the opportunity that a change in mandates provides for the federal government to cut its budget. The second issue—the structural changes in intergovernmental grant programs corresponding to a shift in responsibilities from the federal government to the states—is the focus of analysis in section 2.4.

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  Federalism and Environmental Regulation: A Normative Critique

  Richard L. Revesz

  Vesting control over environmental regulation at the federal level is most commonly justified in both the legal academic literature and the legislative arena by two normative rationales. First, advocates of federal control argue that in its absence interstate competition would result in a “race to the bottom.” Second, they maintain that federal regulation is necessary to prevent interstate externalities. This chapter shows that the race-to-the-bottom justification is analytically flawed, at least as a general argument for federal minimum standards. In contrast, although the presence of interstate externalities provide and analytically unimpeachable argument for federal intervention in cases in which the states cannot engage in Coasian bargaining, the federal environmental statutes have done little to mitigate such externalities and may in fact have exacerbated the problem. The race-to-the-bottom rationale for federal environmental regulation posits that states will try to induce geographically mobile firms to locate within their jurisdictions, in order to benefit from additional jobs and tax revenues, by offering them suboptimally lax environmental standards. The ensuing competition has the same structure as a prisoner’s dilemma: a noncooperative game with a dominant strategy that is socially undesirable. Because they cannot coordinate their actions, states rationally choose a standard of environmental protection that is undesirably lax. The problem of interstate externalities arises because a state that sends pollution to another state obtains the labor and fiscal benefits of the economic activity that generates the pollution but does not suffer the full costs of the activity. Under these conditions, economic theory maintains that an undesirably large amount of pollution will cross state lines. Although they are sometimes conflated, the race to the bottom and the problem of interstate externalities are analytically distinct. Interstate externalities can be prevented by limiting the amount of pollution that can cross interstate borders, thereby “showing” upwind states the costs they impose on downwind states. As long as the externality is eliminated, advocates of federal regulation concerned about controlling interstate externalities should not care whether the upwind state chooses to have poor environmental quality—a central concern of the race-to-the-bottom advocates. Conversely, if an upwind states chooses a high level of environmental quality within its borders and encourages the sources in the state to have tall stacks and locate near the interstate border, so that the effects are felt only in the downwind state, the situation poses an interstate externality problem, not a race-to-the-bottom problem. These two rationales are also distinct from, but sometimes confused with, public choice arguments for vesting responsibility for environmental regulation at the federal level. Such public choice arguments claim that state political processes undervalue the benefits of environmental regulation or overvalue the corresponding costs, relative to the federal process, and that the outcome of the federal process is socially more desirable. Even if there were no interstate externalities, or if industry were wholly immobile so that there could be no race to the bottom, environmental standards would still be more protective at the federal level if, as the public choice argument posits, environmental groups are more effective as this level. Conversely, the interstate externality and race-to-the-bottom arguments for federal environmental regulation may apply even if states properly value the benefits of environmental protection. The analysis of public choice issues surrounding federal environmental regulation is outside the scope of this chapter.

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  Guide to Multiple Regression

  Daniel L. Rubinfeld

  Multiple regression analysis is a statistical tool for understanding the relationship between two or more variables. Multiple regression involves a variable to be explained—called the dependent variable—and additional explanatory variables that are thought to produce or be associated with changes in the dependent variable. For example, a multiple regression analysis might estimate the effect of the number of years of work on salary. Salary would be the dependent variable to be explained; years of experience would be the explanatory variable. Multiple regression analysis is sometimes well suited to the analysis of data about competing theories in which there are several possible explanations for the relationship among a number of explanatory variables. Multiple regression typically uses a single dependent variable and several explanatory variables to assess the statistical data pertinent to these theories. In a case alleging sex discrimination in salaries, for example, a multiple regression analysis would examine not only sex, but also other explanatory variables of interest, such as education and experience. The employer-defendant might argue that salary is a function of the employee’s education and experience, and the employee-plaintiff might argue that salary is also a function of the individual’s sex, with both using multiple regression to evaluate which explanation is more nearly correct. Multiple regression also may be useful (1) in determining whether or not a particular effect is present, (2) in measuring the magnitude of a particular effect, and (3) in forecasting what a particular effect would be, but for an intervening event. In a patent infringement case, for example, a multiple regression analysis could be used to determine (1) whether the behavior of the alleged infringer affected the price of the patented product, (2) the size of the effect, and (3) what the price of the product would have been had the alleged infringement not occurred. Over the past several decades the use of regression analysis n court has grown widely. Although multiple regression analysis has been used most frequently in cases alleging sex and race discrimination and antitrust violations, other applications include census undercounts, voting rights, the study of the deterrent effect of the death penalty, and intellectual property. Multiple regression analysis can be a source of valuable scientific testimony in litigation. However, when inappropriately used, regression analysis can confuse important issues while having little, if any, probative value. In EEOC v. Sears, Roebuck & Company, in which Sears was charged with discrimination against women in hiring practices, the Seventh Circuit acknowledged that “[m]ultiple regression analyses, designed to determine the effect of several independent variables on a dependent variable, which in this case is hiring, are an accepted and common method of proving disparate treatment claims.” However, the court affirmed the district court’s finding that the “E.E.O.C’s regression analyses did not ‘accurately reflect Sears’ complex, nondiscriminatory decision-making processes’” and that the “’E.E.O.C.’s statistical analyses [were] so flawed that they lack[ed] any persuasive value.’” Serious questions also have been raised about the use of multiple regression analysis in census undercount cases and in death penalty cases. Moreover, in interpreting the results of a multiple regression analysis, it is important to distinguish between correlation and causality. Two variables are correlated when the events associated with the variable occur more frequently together than one would expect by chance. For example, if higher salaries are associated with a greater number of years of work experience, and lower salaries are associated with fewer years of experience, there is a positive correlation between the two variables. However, if higher salaries are associated with less experience, and lower salaries are associated with more experience, there is a negative correlation between the two variables. A correlation between two variables does not imply that one event causes the second. Therefore, in making causal inferences, it is important to avoid spurious correlation. Spurious correlation arises when two variables are closely related but bear no causal relationship because they are both caused by a third, unexamined variable. For example, there might be a negative correlation between the age of certain skilled employees of a computer company and their salaries. One should not conclude from this correlation that the employer has necessarily discriminated against the employees on the basis of their age. A third, unexamined variable—the level of the employees’ technological skills—could explain differences in productivity and, consequently, differences in salary. Or, consider a patent infringement damage case in which increased sales of an allegedly infringing product are associated with a lower price of the patented product. This correlation would be spurious if the two products have their own noncompetitive market niches and the lower price is due to a decline in the production costs of the patented product. Causality cannot be inferred by data analysis alone—rather, one must infer that a causal relationship exist on the basis of an underlying causal theory that explains the relationship between the two variables. Even when an appropriate theory has been identified, causality can never be inferred directly—one must also look for empirical evidence that there is a causal relationship. Conversely, the presence of a non-zero correlation between two variables does not guarantee the existence of a relationship; it could be that the model does not reflect the correct interplay among the explanatory variables. In fact, the absence of correlation does not guarantee that a causal relationship does not exist. Rather, lack of correlation could occur if (1) there are insufficient data; (2) the data are measured inaccurately; (3) the date do not allow multiple causal relationships to be sorted our; or (4) the model is specified wrongly. There is a tension between any attempt to reach conclusions with near certainty and the inherently probabilistic nature of multiple regression analysis. In general, statistical analysis involves the formal expression of uncertainty in terms of probabilities that there are relationships should not be seen in itself as an argument against the use of statistical evidence. The only alternative might be to use less reliable anecdotal evidence. This chapter addresses a number of procedural and methodological issues that are relevant in considering the admissibility of, and weight to be accorded to, the findings of multiple regression analyses. It also suggests some standards of reporting and analysis that an expert presenting multiple regression analyses might be expected to meet. Section 2 discusses research design—how the multiple regression framework can be used to sort out alternative theories about a case. Section 3 concentrates on the interpretation of the multiple regression results, from both a statistical and a practical point of view. Section 4 briefly discusses the qualifications of experts. In section 5 the emphasis turns to procedural aspects associated with the use of the data underlying regression analyses. Finally, the Appendix delves into the multiple regression framework in further detail; it also contains a number of specific examples that illustrate the application of the technique.

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  The Hope of Justice: The Great Writ

  Bryan A. Stevenson

  When you’re wrongly convicted of a crime, illegally sentenced to death or life in prison at twenty years of age, you quickly become desperate. You arrive in one of the growing hundreds of prisons and jails in America where the frim reality of extended confinement robs you of your identity, freedom, family, dreams, and aspirations, and you fear that ultimately it will take your life. Your insistent protestations about innocence, your complaints about an unfair trial, and your enraged cries of an unjust verdict are immediately silenced by the isolation of prison. Slowly you being to realize that it’s just a matter of time before you’re going to lose the one thing you absolutely must have to get out and ever succeed again, your hope. The struggle against hopelessness may be the greatest challenge of imprisonment. Finding the courage to persevere against an unlawful detention in a system of justice that is deliberately indifferent to its mistakes and arbitrariness may be considerably harder than facing the constant dangers, treachery, and anguish of confinement. The sense of rage and frustration emanating from the certain belief that you’ve been convicted in violation of the law is destructive and disorienting. Your assumptions about what’s fair, right, and legitimate in the administration of criminal justice are radically altered. To some it is ironic that correct application of the law is so important to prisoners. Yet the moral authority to punish someone for breaking the law is dependent on a commitment by organized society to follow the law. To the condemned and imprisoned, violating the Constitution to obtain a conviction reveals a cynicism about the law so that the violation can never adequately be described as a technicality. It feed the bitterness and resignation that breed recidivism among those convicted of crimes. Worse, it deconstructs the morality of criminal law leaving the powerful to exercise power against the powerless without a commitment to demand lawful conduct of everyone. Thousands of men, women, and juveniles have found themselves in jails and prisons across America struggling against the oppressive reality of an unjust conviction. Their only hope for justice is a single obscure remedy: the writ of habeas corpus. The Great Writ. The renowned legal historian Blackstone described the writ of habeas corpus as the “most celebrated writ in the English law.” Justice Brennan, in Fay v. Noia (1963), defined the writ of habeas corpus as a device to protect the principle that “in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of the law, the individual is entitled to immediate release.” Yet, despite the lofty office of habeas corpus in Anglo-American legal jurisprudence, it has devolved into a process that elevates form over substance.

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  Experts, Economists, Democrats

  Cass R. Sunstein and Richard H. Pildes

  Should government decisions be based on cost-benefit analysis (CBA)? This is one of the most important issues in contemporary law and policy. It raises questions about the nature of individual and collective rationality and also about possible reforms of governmental institutions. Less familiar, but increasingly important, is the emerging role of comparative risk assessment (CRA). CBA explores whether a particular policy is justified on balance. CRA has the more confined role of ensuring better priority setting by ranking risks in terms of their seriousness. CRA is concerned with ensuring that the most serious risks are addressed first. A major question raised by both CBA and CRA is that of valuation: How do we compare risks? What would enable us to decide that it is "too costly" to take a certain course of action? In public policy circles, there are two principal answers to such questions. The first is offered by experts, who attempt to rank risks by reference to technocratic considerations. The second is offered by economists, who try to rank risks by seeing how much people are "willing to pay" to eliminate them (or "willing to accept" to face them). The goal of this chapter is to challenge both the expert and economic approaches and to urge a democratic alternative. The problem with expert approaches is that they ignore some distinctive features of citizen evaluations of risks that are far from irrational. The problem with the economic approach is that private willingness to pay is an inadequate way to evaluate risks or to compare the costs and benefits of proposed policies. Of course, the abstract word "democratic" points to no panacea for handling these problems; but it does suggest some general directions for reform.

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  Criminal Law

  Kim A. Taylor-Thompson

  For most first-year students, criminal law tends to be the one course where they feel most comfortable. At last, they have found a class where the terms are familiar, the issues resonate, and controversies abound! As our national obsession with the celebrated murder case of the People of California v. O. ]. Simpson demonstrates, we are mesmerized by matters related to crime. Questions of violence, personal responsibility, and punishment typically evoke strong emotional reactions, forming the basis of opinions that students will hold when they enter the classroom. However, a course in criminal law challenges students to do more. They must begin to examine these volatile issues not as they have across their dinner tables, but by critically analyzing the underlying theories and competing goals of the criminal justice system. Students will learn to develop arguments and anticipate opposing positions. In the process, they will frequently discover nuances that had previously escaped them. More important, as they debate hard questions about the potential range and limitations of the law, they will find that they are starting to “think like a lawyer.”

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  Criminal Law

  Kim A. Taylor-Thompson

  For most first-year students, criminal law tends to be the one course where they feel most comfortable. At las, they have found a class where the terms are familiar, the issues resonate, and controversies abound! As our national obsession with the celebrated murder case of the People of California v. O. J. Simpson demonstrates, we are mesmerized by matters related to crime. Questions of violence, personal responsibility, and punishment typically evoke strong emotional reactions, forming the basis of opinions that students will hold when they enter the classroom. However, a course in criminal law challenges students to do more. They must begin to examine these volatile issues not as they have across their dinner tables, but by critically analyzing the underlying theories and competing foals of the criminal justice system. Students will learn to develop arguments and anticipate opposing positions. In the process, they will frequently discover nuances that had previously escaped them. More important, as they debate hard questions about the potential range and limitations of the law, they will find that they are starting to “think like a lawyer.”

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  Invisible Woman: Reflections on the Clarence Thomas Confirmation Hearings

  Kim A. Taylor-Thompson

  As I sat behind Anita Hill during the second round of hearings for the confirmation of Clarence Thomas to the Supreme Court, I felt as if I had stepped into a carnival fun house, where the world simultaneously becomes larger than life and fundamentally warped. Here were members of the U.S. Senate Judiciary Committee, despite promises to engage in a genuine fact-finding hearing into the allegations of sexual harassment raised by Hill, distorting the hearing process with the verbal equivalent of mirrors and lights. Even on the occasion of recommending a nominee for a lifetime appointment to this nation's highest court, U.S. senators appeared incapable of rising above their large egos and petty politics to take their investigatory task seriously. Because they could appreciate the complexity of neither the issue of sexual harassment nor the person who sat before them, they failed to establish a process that might have begun to unearth the truth about what had transpired between Clarence Thomas and Anita Hill. Instead, they allowed the hearing to degenerate into a circus sideshow.

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  Perspectives on the Fourth Amendment

  Anthony G. Amsterdam

  This Article is the text of the Oliver Wendell Holmes Lectures, delivered by Professor Amsterdam at the University of Minnesota Law School on January 22, 23 and 24, 1974. Oliver Wendell Holmes, Jr., left a large part of his estate to the United States at his death in 1935. By Act of Congress in 1955, the disposition of the property was entrusted to a Permanent Committee, which, among other projects, sponsors the annual Holmes Lectures by a distinguishedlegal scholar.

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  Against National Culture

  Kwame Anthony Appiah

  Text and Nation: Cross-Disciplinary Essays on National and Cultural Identities consists of eleven articles that address how struggles to demarcate the borderlines of nations affect texts and how these texts are, in turn, narrated in them. Written by eminent scholars from African American Studies, Art History, Comparative Literature, East Asian Studies, English, French, German, Government, Linguistics, Philosophy, and Spanish, the essays explore relationships between national identity and textual genres of literature, music, the visual arts, and language policies. The volume places particular emphasis on the need to understand how the end of the Cold War has affected our interpretation of national and cultural identities. It provides a combination of textual analyses with an invitation to move the interpretive enterprise across the disciplines.

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  Cosmopolitan Patriots

  Kwame Anthony Appiah

  For Love of Country is a rare forum—an exciting conversation among some of our most prominent intellectuals about where our basic loyalties should lie. At the center of this lively, accessible book of debate is Martha Nussbaum's passionate argument for "cosmopolitanism." With our connections to the rest of the world growing stronger, she argues, we should distrust conventional patriotism as a parochial ideal, and instead see ourselves first of all as "citizens of the world." Sixteen writers and thinkers respond to Nussbaum's piece in short, hard-hitting essays, acknowledging the power of her argument, but often defending patriotisms and other local commitments. We hear from an astonishing range of writers - philosophers and poets, literary scholars and historians. Nussbaum reaffirms the cosmopolitan ideal in a moving closing essay. This is a book for all citizens. Representing American philosophy at its most relevant and readable, For Love of Country will shape the way we think about some of our most urgent public issues and deepest human obligations.

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  Culture, Subculture, Multiculturalism: Educational Options

  Kwame Anthony Appiah

  It is a truism that in the United States of America “we live in a multicultural society.” But the obviousness and apparent clarity of this truism, like the apparent clarity and obviousness of most such truisms, dissolves upon inspection. To begin with what is, perhaps, the least patent difficulty, what people normally have in mind when they pronounce this slogan, is that the United States is a multicultural nation. This is by no means obviously the same thought, since that we in America constitute a nation is, so to speak, a juridical and constitutional fact, while our being a society requires, I should have thought, both more and less than this. The people of Martinique, after all, are French nationals: but there is surely such a thing as Martinican society as distinct from French society—the society of the “hexagon”—and it is not obvious that Martinicans generally are participants in the latter. Similarly, many Native Americans, who live on reservations, while clearly American nationals, might be thought to live in a separate society from the rest of us; and we might also argue, less uncontroversially, that soldiers on bases, the inhabitants of Bel Air, or of South Central L.A., or of San Francisco's Chinatown, live in societies separate from those of the people whose lives go on around them.

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  Identity: Political Not Cultural

  Kwame Anthony Appiah

  In my dictionary I find as a definition for "culture": "The totality of socially transmitted behavior patterns, arts, beliefs, institutions, and all other products of human work and thought." Like most dictionary definitions, this one could be improved. But it surely picks out a familiar constellation of ideas. In fact, it captures the sense in which anthropologists commonly use the term nowadays. The cultures of the Ashanti or the Zuni comprise, for the anthropologist, every object they make-material culture-and everything they think and do.

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  Introduction

  Kwame Anthony Appiah

  It is a familiar idea that modernity allows the ordinary citizen to make a national identity central to an individual identity: being-American has been central to the self-definitions of many Americans of all races and classes, as being-English (and, later, British) was to so many Englishmen and -women. For these patriots, the story of the nation was a crucial element in their sense of themselves. It is a slightly less familiar thought that the identity of this nation is tied up with the stories of individuals—Representative Men and women, in Emerson's formula—whose stories, in helping to fashion a national narrative, serve also, indirectly, to shape the individual narratives of other patriotic—nationally identified—citizens. Horatio Alger famously contributed to the development of a narrative of success, constructing an American pattern that many—from Booker T. Washington to Henry Ford—read into their own life-stories; fitting this pattern was, for them, as for those who celebrated them, a crucial element of their American-ness, a necessary part of what made them suitable objects of the identifications of their fellow citizens.

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  Old Gods, New Worlds

  Kwame Anthony Appiah

  This innovative anthology presents selections from the most important classics in African philosophy drawn from each of the four trends in Oruka's classic system of categories. Unlike other similar anthologies, it provides substantive, influential commentaries on the selections, as well as extensive editorial introductions and footnotes that put issues in context, show connections, and raise critical questions about major issues.

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  Race, Culture, Identity: Misunderstood Connections

  Kwame Anthony Appiah

  The Tanner Lectures are a collection of educational and scientific discussions relating to human values. Conducted by leaders in their fields.

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  Changing Control OF Police Violence in Rio de Janeiro and São Paulo, Brazil

  Paul G. Chevigny

  To understand police violence and its control in Brazil requires some understanding of the contexts in which both occur. Brazil is thought to have the most pronounced income inequality in South America. Until the mid-eighties, it had one of the most durable military dictatorships in the hemisphere, lasting almost twenty years, although with a gradual easing (abertura) from the late seventies. The national government now is a democratic federal system, in which the states actually have more autonomy than the states in the US. The state of Sao Paulo is the industrial giant of Brazil, producing some fifty percent of the nation's manufactured goods as well as much of the agricultural product. Its stage of economic and social development is estimated to be like that of Mexico. The state has some thirty million people, of which nearly half are in the city's metropolitan area. Rio de Janeiro, both the state and the city, is much smaller. The political flavor of the governments of the two states is extremely different. Rio's governor until 1994, Leonel Brizola, a populist liberal, was driven from politics by the dictatorship but has returned to popularity since its demise. Those in charge of criminal justice under Brizola are people who protested the repression of the dictatorship; they proudly refer to themselves as “human rights militants.” Of course, they would at the same time like to make the city less crime ridden. In contrast, the governor of Sao Paulo at the time of this writing, Luiz Antonio Fleury, is a tough law-and-order prosecutor who was earlier trained as an officer in the police. He has tried to use the police as an instrument for the direct repression of crime. The police are organized on a statewide rather than municipal basis. (A small federal police fills a function analogous to that of the Federal Bureau of Investigation, the FBI.) The investigative/judicial police are called civil police; they are organized separately and stationed in different offices from the military police (PM), who do the patrol work. The latter are organized hierarchically, with a specially trained officer staff. They are not part of the military forces, although they were absorbed into them during the dictatorship. In 1987, 1991 and 1992, in the course of writing extended reports for Americas Watch (a non-governmental human rights organization) concerning police violence in the two states, I visited both cities collecting data, and I had an opportunity to observe changes during the intervening five years. At the time I started, the only relevant piece in English, I think, was Deborah Jakubs' in David Bayley's book. Although it was a fine piece, it was handicapped by the difficulty of fact-finding during the dictatorship. That difficulty has disappeared—the Sao Paulo military police now seem to me less secretive than, say, the New York police—but it suggests the aim of the present project. My principal problem is to understand how massive police abuses can prevail in a democratic society; a subsidiary problem is to understand the transition to democracy in the police—to see the aftereffects of dictatorship on police in a democracy. The abuses I concentrate on are the classic worst—coerced confessions and the misuse of deadly force.