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Implications of Daubert v. Merrell Dow
Rochelle C. Dreyfuss
Through its 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court set the stage for considerable controversy in cases involving technologically complicated issues. Although Daubert formally presented a fairly narrow question concerning the extent to which the Federal Rules of Evidence displaced common law, the case touched on broader concerns: the relationship between science and law, and the influence of scientists in society. Thus, the effect of the Court's decision will surely extend beyond the tort dispute in which it arose and the confines of federal court. What follows is a short discussion of Daubert followed by a survey of the broader questions it raises, focusing in particular on the role that scientists ought to play in determining how courts utilize their input.
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Intellectual Property Law
Rochelle C. Dreyfuss
This chapter describes the provisions of American law that create exclusive rights in the fruits of the intellect, principally inventions, designs, writings, technical know-how, and marketing symbols. These laws include patent law, which protects inventions and designs; copyright law for the protection of writings; trademark law for marketing symbols; and state trade secrecy and contract law for the protection of know-how. Collectively, these are referred to as ‘intellectual property law’. However, it is important to stress from the outset that, although this phrase uses the word ‘property’, this branch of the law is very different from the law that deals with tangible property. There are at least three features that highlight the differences between tangible and intangible property law. One has to do with supply. Much of property law deals with natural resources, such as land and minerals. These are fixed: there is, for instance, a finite amount of land on the globe and no way to replace a piece that is despoiled. The law of tangible property, therefore, is partly aimed at encouraging creative management and conservation. There are, however, infinite possibilities for new ideas and no need to conserve them for the future. To the contrary, one innovation can open doors to many others, so that the sooner and more fully an idea is discovered and utilized, the faster the knowledge base expands. This interrelatedness is the second feature that distinguishes the laws of tangible and intangible property. With regard to natural resources, demand and supply are in some ways discrete concepts. For example, using zinc cannot increase the world's supply of zinc. But using ideas does create more ideas. The cumulative nature of innovation means that intellectual property law must be fashioned with an eye toward the duality of ideas as input and output. It must be structured to simultaneously reward the producer of an invention and protect other inventors' access to the building blocks of knowledge. The third, and most important, difference between tangibles and intangibles has to do with the ability to share. Tangible property lawyers talk about the ‘tragedy of the commons’. If, for example, every farmer has the right to graze sheep on a piece of land, the grass will be chewed to its roots. When the grass dies, all the sheep starve. Establishing exclusive rights to property solves the problem because private ownership gives individual farmers the ability and incentive to graze the flock in a manner that maintains the grass. There is, however, no tragedy of the commons with regard to intellectual property because it can be shared. That is, once an invention is perfected, or a manuscript completed, the creator's ability to use it for its intended purpose—to read a research report, or to operate a machine—is usually not diminished by the use made of that same invention by others. Instead, as each utilizer enjoys the benefits of the innovation (and as each utilizes the invention as a source for other ideas), social welfare increases. The effect, then, of creating substantial rights in intellectual property appears to be a social disutility. These rights are, after all, essentially monopolies in that they control the ‘supply’ of a product, in this case, information. Like other monopolies, they have the potential for raising prices and lowering output. In addition, they can produce deadweight social loss as people who could profitably use the innovation, were it priced competitively, forgo purchasing it at the monopolist's price. Thus, the imposition of a private rights system must be justified, and the justification must be based on some ground other than the tragedy-of-the-commons idea that supports the laws of tangible property. Several rationales have been suggested. The natural rights theory holds that the creator has a moral right to the fruits of his labor, including the benefits produced by his intellect. Although many nations' intellectual property laws are at least partially premised on this rationale, American law has largely rejected it, the theory apparently being that creativity is its own reward. Four other rationales exert more of an influence on intellectual property law; three to a lesser extent and one to a greater extent. The lesser theories include the exchange-for-secrecy rationale, which states that, without a legal right to prevent others from copying his invention, the creator may be tempted to keep it secret. If he does, others may unknowingly duplicate the effort that went into creating it. Moreover, no one will be able to use its ideas to push the frontiers of knowledge further. Even though creating an exclusive right in the innovation raises costs, the increase is offset by the benefits of disclosure. The quality-control principle looks at the exclusive right as a method for protecting the innovation once it is released. By giving the holder of the right the power to control how the innovation is used, exclusive rights enable him to maintain its integrity. He can, for example, use this right to prevent others from distorting or mutilating his work, thereby diluting its quality. The prospecting theory shares some of these quality-promotion elements. It argues that one value in a system of exclusive rights is that it concentrates research. Like a miner who owns her mining claim, the holder of an exclusive right has the incentive to fully develop her ideas. And since anyone else who wants to pursue work in that field must seek her authorization, the holder comes to possess comprehensive knowledge of how the field is unfolding and can help maintain an ‘orderly market’ in its further development. The profit-incentive theory, which has the most dominant influence on the shape of American intellectual property law, takes the most utilitarian approach. It argues that a period of exclusivity is necessary to protect the innovator from copiests. This protection is needed because the costs of copying are lower than the costs of innovating, and so the copiest/freerider could easily capture the entire market for the product and prevent the innovator from earning back the costs of producing the invention. Since most inventors cannot afford to donate their services to the public, the optimum level of innovation will not be achieved without exclusivity. Of course, government could solve the freerider problem by subsidizing innovative efforts, but exclusivity works better because market mechanisms generate a reward that, more or less, mirrors the benefit the public sees in the invention. Presumably, others will be induced by this profit to channel their innovative efforts into areas the public especially values. As the following pages will demonstrate, the question whether exclusivity is justified in a particular case, and if so on what theory, is at the heart of many of the pivotal disputes underlying American intellectual property law. How these questions are resolved—and what power, as a constitutional matter, the states and Congress have to resolve them—determines whether a particular endeavor will receive legal protection at all, and whether it will receive that protection under the patent system, the copyright laws, trademark law, or some other state or federal regime. In the end, the choice of justification shapes both the rights of creative individuals and the quality (and quantity) of the product that passes to the public.
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Reflections On Education at the ILR School, Circa 1958-1962
Harry T. Edwards
A collection of reflections on the first fifty years of the School of Industrial and Labor Relations at Cornell University. Compiled by Robert B. McKersie, J. Gormly Miller, Robert L. Aronson, and Robert R. Julian. Edited by Elaine Gruenfeld Goldberg. It was the hope of the compilers that the reflections contained in this book would both kindle memories of the school and stimulate interest on the part of future generations of "ILRies" who have not yet shared in its special history.
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Labor and Employment Law
Samuel Estreicher
As a generalization—and certainly in comparison to the laws of other industrialized nations—the employment relationship is not pervasively regulated in the United States, even to this day. Absent a specific statute or express contract, employment in the United States is considered ‘at will’; both the employee and employer are free to terminate the relationship with or without cause. The theory behind the ‘at will’ rule is that reliance on market forces will best serve the joint interests of employers and workers. Employers, it is argued, face lower costs in hiring workers because they can easily terminate the relationship if it proves unsatisfactory. Workers also benefit from a system which allows them to quit at any time. An unfair employer will not succeed in retaining able workers and will have trouble recruiting new ones. Such an employer also must deal with the threat that workers dissatisfied with their conditions will form trade unions. (As discussed in section IV below, United States law protects the rights of workers to form independent trade unions and engage in collective bargaining With their employers.) Over the course of the twentieth century, however, public policy in the United States has shifted in favor of a system that mixes reliance on market forces with regulation. Three rationales are often offered for government intervention. The first is a concern that contracts formed between employers and individual workers will systematically favor employers because of the limited bargaining power of workers. Under this view, workers often will endure long hours, unsafe conditions, and poor pay because they are dependent on employers for their livelihood, and are not able easily to move to seek opportunities elsewhere. Indeed, for unskilled workers, there may be few such alternative opportunities. Regulation is thought to be needed to correct this imbalance of bargaining power by protecting the right of workers to form unions and engage in collective bargaining, and by writing minimum terms into every employment contract, such as minimum wages, maximum hours of work, limits on the use of child labor, and guarantees of safe and sanitary workplaces. A second rationale for regulation is that society can properly insist that employment take place only in conformity with evolving social norms of fair conditions. This justification would also apply to maximum hours, child labor, and occupational safety laws. Rules barring discrimination on account of race, religion, sex, age or handicap can also be viewed as an expression of social value judgments about the permissible grounds for evaluating human beings. Another formulation of this argument for regulation is that the law may be seeking to alter the values or preferences of workers and firms. For example, occupational safety laws may encourage workers to change their expectations of the proper trade-off between wages and safe conditions—expectations which form a new baseline for employment contracts. Similarly, the discrimination laws have forced employers to re-evaluate early assessments of the costs of hiring black and female workers because anticipated adverse reactions of customers or co-workers did not materialize. A third justification for regulation is to correct deficiencies in the operation of labor markets. Under this view, labor markets are not perfectly competitive, and some forms of regulation may actually improve efficiency in labor markets. Unemployment insurance and adjustment assistance laws require employers to absorb some of the costs of their termination decisions; in the absence of such laws, these costs would be imposed on society. The mobility of workers, and hence their ability to pursue market options, can be enhanced by laws making pensions and other benefits transferable with them to their new jobs, rather than dependent on continued service with the same employer. Collective bargaining laws can also be viewed as a mechanism for producing ‘collective goods’, such as grievance systems; in individual bargains, such terms may be omitted because the costs to the firm of such systems (which cannot be confined to individual workers) may be greater than the benefits to the individual worker. However, such a system may be something the workers collectively would seek if they could bargain on a collective basis. However, regulation is not costless. There are the costs of administering the scheme (including the risk that fear of liability may discourage employers from making socially desirable judgments). Moreover, employers will attempt to shift the costs of regulations to workers, in the form of lower wages or smaller wage increases. To the extent such cost-shifting occurs, and mandatory minimum terms do not capture well what workers want, these workers may be worse off than they would be in the absence of regulation. Even when such laws benefit those who have jobs, they may create disincentives to hire additional workers. Imposing excess costs on employers may also affect the competitiveness of American products and services in world markets. This chapter examines three dimensions of the labor and employment law system in the United States: (1) employment law (or what in many other countries is called individual labor law); (2) discrimination law; and (3) collective bargaining and union organization law.
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Labor and Employment Law
Samuel Estreicher
As a generalization—and certainly in comparison to the laws of other industrialized nations—the employment relationship is not pervasively regulated in the United States, even to this day. Absent a specific statute or express contract, employment in the United States is considered 'at will'; both the employee and employer are free to terminate the relationship with or without cause. The theory behind the 'at will' rule is that reliance on market forces will best serve the joint interests of employers and workers. Employers, it is argued, face lower costs in hiring workers because they can easily terminate the relationship if it proves unsatisfactory. Workers also benefit from a system which allows them to quit at any time. An unfair employer will not succeed in retaining able workers and will have trouble recruiting new ones. Such an employer also must deal with the threat that workers dissatisfied with their conditions will form trade unions. (As discussed in section IV below, United States law protects the rights of workers to form independent trade unions and engage in collective bargaining with their employers.)
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The Dunlop Report and the Future of Labor Law Reform
Samuel Estreicher
America's labor laws are based on a view of the employment relationship that emphasizes the conflict of interest between labor and capital. The advancement of labor's welfare in the distributional struggle was thought to require institutional guarantees of autonomous organizations capable of forming alliances across firms and pressing disagreements through sustained work stoppages. At one time the model of the National Labor Relations Act of 1935 (NLRA or Wagner Act) and the Railway Labor Act of 1926 (a measure applicable only to the railroad and airline industries) reflected the preferences of workers in traditional crafts and mass production industries who saw no common interest with their employers. The unions' objectives also could accommodate the needs of companies for clear lines of authority between supervision and production, and assurances that hikes in labor costs would be imposed on all competitor firms. The model no longer works. From a highpoint in the mid-1950s—when unions represented over 35 percent of workers in private firms, influenced the terms that had to be paid non-union workers to avoid unionization, and effectively imposed their "master" agreements across entire product markets—the unionization rate has plummeted to under 12 percent of the private sector workforce. It is likely to fall even further.
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Uniform Application and Interest Rates Under the 1980 Vienna Sales Convention
Franco Ferrari
While the trend toward world-wide harmonization of trade law is one hundred years old, this tendency is still characteristic of the twentieth century. Indeed, it is in this century that “[t]he globalization of most national economies has resulted in a dramatic increase in transnational commerce” and, consequently, in the increasing necessity of a corresponding legislative policy designed to regulate such transnational commerce. The need has arisen for a body of law to govern business transactions linked to a plurality of legal systems. Since “[i]nternational trade has been hindered by a myriad of distinct domestic laws,” this body of law has had to reduce the obstacles to international trade caused by the differences in municipal laws, In other words; it had to “reduce the impact of national boundaries,” the worst enemy for the international merchants and traders. Consequently, “[e]fforts have long been underway to promote international trade by unifying and harmonizing international commercial law.” In order to achieve this goal, two techniques in particular have been adopted: the unification of rules of private international law, i.e., choice-of-law rules, and the unification or harmonization of substantive rules. “The uniform choice-of-law rules assure a party entering into a contract with a foreign enterprise that no matter which forum a dispute is brought before, the chosen country's substantive law will apply. When the substantive legal rules are made uniform, the party is assured further that courts will apply the same legal rules no matter where the parties litigate the dispute.” There has long been a disagreement among legal scholars as to which technique is preferable. But more recently, there appears to be a tendency favoring the uniform substantive rules over the uniform choice-of-law rules, even though the unification of the choice-of-law rules may prove advantageous from certain points of view. Aside from the technique chosen, the efforts toward unification have usually taken only one form: “the form of binding instruments, be it supranational legislation, international conventions or model laws,” although other forms are conceivable as well. The 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) elaborated· by the United Nations Commission on International Trade Law (UNCITRAL) does not constitute an exception to the aforementioned rule. On the contrary, it is one of the most successful binding instruments drafted on an international level. In order to achieve uniformity in international trade law, however, it is not sufficient to enact uniform law conventions. “It is equally important that its provisions ... be interpreted in the same way in various countries.” Although this necessity may arise in relation to any international convention drafted by an international group of lawyers coming from different legal backgrounds, it is most accentuated in the Vienna Sales Convention, since this necessity generally arises in proportion to the number of legal systems represented by the various Contracting States. This is why the drafters of the Vienna Sales Convention introduced a provision designed to limit the perils of its diverging application. According to this provision, “in the interpretation of [the] Convention, regard is to be had to its international character and to the need to promote uniformity in its application….” The Convention also sets forth a rule to be applied in cases of gaps: “Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private inter-national law.” However, the peril of diverging applications of the Vienna Sales Convention is not totally cured by the introduction of those provisions because they do not identify a method of interpretation or gap-filling, but only a goal—the promotion of uniformity. The rule to be applied in cases of gaps, for example, does not identify any helpful criterion to determine in concreto when a gap is considered a lacuna intra legem, i.e., the matter is outside the scope of the Convention, as opposed to a lacuna praeter legem, i.e., the Convention applies to the issue but does not expressly resolve it. This problem is most important in determining the exact sphere of application of the Convention.
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Uniform Interpretation of the 1980 Uniform Sales Law
Franco Ferrari
The origin of the industrialized nations' necessity to comply with a specific economic policy designed to “transcend national borders in order to maximize the utilization of the resources” originated from the consequences of the Industrial Revolution and, more specifically, from the over-production due to the ensuing industrial growth. This economic policy “required a correspondent legislative policy able to regulate the economic relationships: this policy, not unlike the economic policy, had to cross national borders.” It is for this reason that since the end of the last century and with increasing intensity since the beginning of this century, efforts have been made to “create an internationally uniform discipline for cases linked to a plurality of countries.” By doing so, one intended to overcome the nationality of law, both private and commercial, which originated from the emergence of national states in Europe and from the enactment of the first codes (such as the Scandinavian codes, the French code and the Austrian code). The enactment of these codes infringed upon the transnational character of the law previously in force which constituted a real lex universalis: the so-called lex mercatoria. This consisted of a practical body of law grounded in usages whose particularity consisted in having been created by the merchants' courts in order to solve problems related to commerce. It is to the creation of a similar law, a droit corporatif international, that both economists and legal scholars direct their efforts. One assists, in other words, in the creation of a “new law merchant” in order to overcome what has been defined as “anarchy upon which international relationships are based.” Such a law would overcome the nationality of the law which constitutes “an obstacle to economic relationships which constantly increase among citizens of different countries; an obstacle above all for the enterprises that are involved in international commerce and that acquire primary resources or distribute goods in different countries which all have different law.”
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Antitrust Law
Harry First
Antitrust law in the United States has developed over a period of more than 100 years. The basic statutes are written in broad, general language. Their meaning has been developed by the courts, applying this broad language to a wide variety of business practices. The oldest federal antitrust statute is the Sherman Act, enacted in 1890. Its main substantive provisions are Sections 1 and 2. Section 1 prohibits contracts, combinations, or conspiracies ‘in restraint of trade’. Section 2 prohibits monopolization or attempts to monopolize. Early court interpretations of the rather vague statutory provisions of the Sherman Act led many to believe that the Sherman Act required further amendment if it were to be effective. The result was the passage in 1914 of the other two basic antitrust statutes, the Clayton Act and the Federal Trade Commission Act. The former contains provisions dealing with a number of specific business practices about which Congress was concerned, the most important being a provision dealing with mergers (Section 7) The latter established a regulatory agency, the Federal Trade Commission (FTC), which was given broad power to prevent ‘unfair methods of competition’.
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British Criminology Before 1935
David W. Garland
[ . . . ] By convention, modern scientific criminology is said to have begun with Lombroso's criminal anthropology in the 1870s, and in one sense this is true enough, since it was the impact of Lombroso which sparked off the international congresses and debates of the 1880s and brought the idea of a criminological science to public prominence for the first time. But criminology in Britain did not develop out of the Lombrosian tradition. Nor did it derive from the European movement, despite the way in which Edwardian penal reforms appeared to follow its lead—even despite the fact that it would later be a group of European émigrés who did most to establish an academic profession of criminologists in this country. In fact the scientific approach to crime and punishment was not something which Britain reluctantly imported from abroad. On the contrary, there existed in Britain, from the 1860s onward, a distinctive, indigenous tradition of applied medico-legal science which was sponsored by the penal and psychiatric establishments, and it was this tradition which formed the theoretical and professional space within which ‘criminological science’ was first developed in this country. If we are to understand criminology and its social foundations it is important not to confuse these two traditions, or to collapse one onto the other. In particular, we should avoid assuming that any criminological work which is ‘positivist’ in style is somehow derived from the 'Scuola Positiva' of Lombroso. Much of the early British criminology which I will describe falls into the broad epistemological and methodological categories which we nowadays call ‘positivist’—but it had little to do with Lombroso's Positivism, nor indeed with that of Comte. Lombrosian criminology grew, somewhat accidentally, out of an anthropological concern to study man and his natural varieties. The identification of human types led Lombroso and others to isolate such types as the genius, the insane, the epileptoid and the criminal, and to subject them to scientific scrutiny and categorization. To some extent this was effectively the redescription in scientific language of distinctions which were already established in cultural terms, and certainly the excitement which followed Lombroso's identification of 'the born criminal' occurred because his work allowed a spectacular convergence between human science and the concerns of social policy. His differentiation of ‘the criminal type’ chimed with deep-rooted cultural prejudice and also with the real processes of differentiation which were then being established by the expanding prison system, so that the apparent policy implications of Lombroso's work immediately became a focus for widespread attention. But although Lombroso was well aware of the social policy relevance of his anthropology, and took pains to promote it, he was not, at first, particularly well informed about the practical realities of crime and punishment. In consequence, his penology was not just radical and at odds with current practices: it was also naive and uninformed, demonstrating a lack of familiarity with the normal range of offenders and with the institutions which dealt with them. In fact it is clear that Lombroso had developed his conception of the criminal type more out of theoretical commitment than from practical experience or observation. And although exposure to criticism and his increasing involvement in penal affairs eventually led him to amend his initial framework, and to tone down his more outrageous propositions, it was the clear and unqualified claims of his early work which continued to define the Lombrosian tradition, particularly for those who viewed it from afar. The psychiatric and medico-legal framework within which Britain developed its early criminological science was different from the Lombrosian tradition in a number of important respects. Unlike anthropology, psychiatry was not concerned to isolate discrete types of human individuals and classify them by means of racial and constitutional differences. Instead, it was a therapeutically oriented discipline based upon a classification system of psychiatric disorders which, like the disease model of nineteenth century medicine, discussed the condition separately from the individual in whom it might be manifested. Within the classification system of morbid psychology there were a variety of conditions which criminals were typically said to exhibit—insanity, moral insanity, degeneracy, feeble-mindedness, etc. But generally speaking, the criminal was not conceived as a psychological type. Instead the spectrum of psychiatric conditions might be usefully applied to a part of the criminal population: there was no separate criminal psychology or psychiatry, based upon ontological difference.
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Social Control
David W. Garland
The concept of social control is widely and variously used in the social sciences. In sociology and anthropology is it used as a generic term to describe the processes which help produce and maintain orderly social life. In the specialist field of criminology, it usually carries a narrower meaning, referring to the administration of deviance by criminal justice, social welfare and mental health agencies. Sometimes the term takes on a critical sense, for example in social history and women's studies, where the notion of social control has been used to point to the subtle constraints and forms of domination present in institutions such as the family or the welfare state. The breadth and imprecision of the social control concept has meant that it has tended to work as an orienting device for thinkers and researchers, rather than as an explanatory tool of any refinement. Sociologists in the early twentieth century developed the concept to explore the problem of social order in the industrialized, urbanized societies then emerging. Criminologists in the 1960s used the term to redirect attention away from an exclusive focus upon the individual criminal and to stress the role which social rules and reactions play in the process of criminalizing particular behaviours and persons. Social historians in the 1970s employed the notion of social control as a means of subverting and revising orthodox accounts of social reform which had tended to overlook the hidden class-control aspects of many reform programmes. However, once such reorientations have been achieved, the general concept of social control often ceases to be useful and gives way to more specific questions about the different forms, objectives, supports and effects of the control practices under scrutiny. Like many sociological concepts, social control is a subject of continuing contestation, either by those who deny the appropriateness of this approach to particular phenomena, or else by those who find the term insufficiently precise to do the analytical and critical work required. That the concept is also and inevitably tied into political debates—either as part of a conservative quest for social order, or else in support of a radical critique of social institutions—serves to deepen the controversy surrounding its use. So too does the semantic proximity of the term to other concepts such as socialization, regulation, domination, power and culture. Social scientists who use this concept are obliged to define it for their own purposes or else invite misunderstanding. Given this conceptual state of affairs, the most illuminating way of understanding the term is to summarize its intellectual history rather than adopt a purely analytical exposition. However, one should bear in mind that contemporary usage still draws upon all of these past conceptions, and often reinvents under a different name many of the ideas and distinctions which earlier writers first established. The classical social theorists of the nineteenth century—Comte, Marx, Durkheim, Weber, Simmel, etc.—did not employ the term social control, although their work certainly dealt with the issues of social self-regulation, enforcement of norms, and class domination which social control theorists were later to address. Instead, the concept was first developed by the sociologists of early-twentieth-century USA, particularly by E. A Ross and W. G. Sumner, who sought to identify the myriad ways in which the group exerts its influence upon the conduct of the individual. Ross's (1901) Social Control took as its starting-point the shift from small-scale, agrarian, face-to-face communities to dense, industrialized urban societies, and argued that this shift entailed a qualitative transformation in the bonds which made social order possible. Whereas the earlier gemeinschaft communities had been held together by what Ross regarded as a ’living tissue’ of natural controls such as sympathy, sociability and a shared sense of justice, social control in the newer Gesellschaft societies was a matter of ‘rivets and screws’ which had to be consciously created and maintained if order was to be achieved within these complex and conflictual social settings. Ross's work catalogued and anatomatized these foundations of order, dealing in turn with public opinion, law, belief, education, religion, art and social ceremony. In much the same way, Sumner's (1906) Folkways described how usages, manners, customs and morals provided the basic underpinning of social regulation, upon which the more formal system of law was built.
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Improving Jury Decisionmaking: Damages for Pain and Suffering
Mark A. Geistfeld
This summary describes the general discussion following the panel presentation in terms of the issues addressed rather than the order in which the discussion proceeded. A number of participants questioned the premise that awards for pain and suffering reflect an unacceptable amount of variability for injuries of the same type. In their view, a comparative study that finds discrepancies across cases does not show that the system is irrational unless the comparison accounts for the individual characteristics in each case that are relevant to its outcome. Participants who felt that there is an undesirable degree of variability in these awards acknowledged that the categories currently used for comparison are too crude and imprecise to provide a definitive answer. One participant noted that the problem of variability in pain and suffering awards may in fact be more pronounced than depicted in the Aetna study. The study includes only awards after remittitur, and since remittitur reduces the verdict, there must be even more variability in awards made prior to remittitur. Another participant observed that it is an empirical question whether variability in pain and suffering awards reduces the likelihood of settlement. Consequently, it would be desirable to compare settlement rates for cases that involve such awards with cases that do not. This participant thought that perhaps insurance companies or claims adjusters would be able to provide such data. This participant then noted that in California, for cases involving a claim for pain and suffering damages, settlement negotiations typically proceed by taking medical costs, multiplying by three, and adding (for plaintiffs) or subtracting (for defendants) some amount to provide a settlement range. Another participant said that an insurance company used to rely on this approach in its settlement negotiations, but no longer does because it gives plaintiffs an incentive to overstate their medical costs. One participant thought that the current system for awarding pain and suffering promotes settlements. Defendants often do not have an incentive to settle and would rather fight a “paper war” in an attempt to overwhelm the plaintiff. By asking the right questions about how settlement negotiations are proceeding, judges can re-balance the system by emphasizing the possibility that the defendant faces substantial pain and suffering damages. For this reason, this participant concluded that the variability in pain and suffering awards may provide judges with an effective tool for expediting settlements.
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The American Legal Profession
Stephen Gillers
One facet of the American legal profession that surprises many observers, including American lawyers, is its size. It is big and growing bigger, both absolutely and relative to the American population. In 1970, there were about 350,000 American lawyers. By 1983, that number had increased to 600,000, and in 1992, there were 750,000. Although the American population is also growing, the lawyer population is growing faster. In 1970, the lawyer-to-population ratio was 1/572. It was 1/310 in 1990. By the end of the century, the ratio is expected to drop below 1/275. From 1963 to 1974, the number of law school graduates tripled (from about 9,000 to 27,000) and then increased another 55 percent by 1993, when American law schools awarded 42,000 law degrees. The composition of the profession is also changing because of the increase in women and minorities. This change can be seen clearly when we look at legal education. In 1963, of the nearly 47,000 law students enrolled in the 135 law schools then accredited by the American Bar Association, only 3.7 percent were women. In 1994, when 129,000 students were enrolled at 177 accredited law schools, 43.7 percent of the student body were women. Minority enrollment in American law schools has also advanced. In 1977, 5,300 African-American students were enrolled in American law schools. By 1994, that number increased to 9,680. Corresponding numbers for Hispanic students are 2,531 (1977) and 6,772 (1994), and for Asian and Pacific Island students, 1,382 (1977) and 7,196 (1994).
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Family Law
Martin Guggenheim
‘Family law’ is really a set of disparate subjects grouped under one heading. Taken as a whole, it is a complex field made especially difficult to describe because most of this vast body of law is state law and no two states treat the subject identically. In recent years, however, the federal government has pa§§ed a wide variety of laws that have had a direct impact on local law. Because of this, more of family law today is uniform than at any time in American history. Fortunately, this ‘federalization’ of the subject allows a tidier discussion than was possible even 5 years ago. In all areas of family law, the state invariably looms in the background. Of course, intimate relationships are formed outside the law's authority. However, law determines whether or not these relationships will be formally recognized. This determination can be of great significance. It may mean whether the law recognizes a parent-child relationship—as when a child is born out of wedlock and the mother, child, or putative father seeks to have the parent-child relationship formally acknowledged. That determination, in turn, will affect a variety of vital matters including the child's right to inherit from the ‘father’, and the ‘father's’ right to visit with or obtain custody of the child or even to prohibit the child's adoption by others. To a corresponding degree, when the state refuses to recognize an intimate relationship (by making it unlawful for a couple to marry, for example), that determination has significant emotional and financial consequences. It can mean the difference between a person's having no entitlement to any part of another's property, and being entitled to half of all that person earned during the period of the relationship. In this sense, the state is omnipresent in the intimate affairs of Americans. But it looms in the background. It is in the background in still another sense. Not only are intimate relationships formed without state involvement, they are dissolved that way as well. When relationships break up, the parties are free to agree between themselves on virtually anything about their affairs. Many of these agreements will never be reviewed by state officials. Others will be formally approved, but without meaningful scrutiny. The vast majority of all breakups are resolved by such private agreements. But these agreements, nonetheless, are made ‘in the shadow of the law’. What the law has to say on a certain topic is known by both parties and is, to a greater or lesser degree, taken into account in fashioning an agreement. In these senses, then, law is ubiquitous even in the most private of family affairs. Because ‘family law’ covers so many subjects, it is necessary to divide it into categories. A useful, but imperfect, division is between public and private. ‘Public family law’ will refer to the formation and dissolution of families through direct state action. Included within this category is the law of child protection, foster care, state-initiated termination of parental rights, and adoption. ‘Private family law’ covers the formation and dissolution of family ties through private ordering. The principal topics in this category are marriage, divorce, custody and visitation disputes, and property distribution. As explained in the previous paragraphs, even ‘private family law’ matters invariably involve the state (law governs the conditions of marriage and divorce, and custody and property disputes in the wake of divorce commonly are decided by courts). A public-private distinction is nonetheless useful, with ‘private’ matters being characterized by people-initiated events, and ‘public’ matters involving state-initiated action. Finally, a brief word is appropriate about the evolving nature of family law. The law's definition of ‘family’ changes as society's cultural norms and practices change. However, the law is always playing catch-up to behavioral changes in society. There are 3 .5 million unmarried couples living together in the United States, over one-third with children. A large number of children today are being raised by other than their biological parents. Almost one-third of American children are born to unwed mothers, and a slightly larger percentage live with a single parent. Many of these new families have obtained an important measure of legal protection. In addition, several state courts have recognized gay and lesbian relationships as the equivalent to state-sanctioned marriages, at least for limited purposes such as being able to keep a lease after a domestic partner has died. Others allow gay and lesbian couples to adopt children. Extended families have been accorded legal significance in housing and child custody cases; unmarried heterosexual partners have had their unions legally validated; and discrimination against children born out of wedlock has repeatedly been held unconstitutional.
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Autonomy, Toleration, and Group Rights: A Response to Will Kymlicka
Moshe Halbertal
Kymlicka’s main purpose is to establish a necessary connection between toleration of individuals and the possibility and value of autonomy. This principal thesis is preceded by an interesting historical observation drawn from the political arrangements in the Ottoman Empire, which leads Kymlicka to offer a distinction between group pluralism and individual freedom. In the Ottoman Empire and its millet system, religious freedom was granted to groups rather than individuals. Members of the Greek Orthodox community, Jews, and Armenians were autonomous in all matters of religious life and were thus tolerated by their Muslim rulers. However, these three communities did not tolerate individual dissent within themselves, and each minority group had the legal right to impose on its members its own particular way of life. Hence, according to Kymlicka, Rawls is wrong in claiming that religious toleration and pluralism began in the wake of Protestantism; in the form of group toleration, in fact, religious pluralism was practiced long before Protestantism and the religious wars of Europe. This argument, though, is not merely historical. Kymlicka claims that Rawls was mistaken not only concerning the history of toleration. According to Kymlicka, Rawls’s mistake is rooted in a philosophical error that equates pluralism with individual freedom of conscience. The Ottoman experience, he contends, teaches us that religious toleration of groups is possible without practicing individual freedom of conscience. This observation leads Kymlicka to the second and central point of his argument. He argues that the move from group pluralism, such as that found in the Ottoman millet system, to individual freedom must be supported by the value of individual autonomy. According to Kymlicka, Rawls’s reluctance (in his later work) to base pluralism on the possibility and value of individual autonomy limits the application of pluralism to groups alone. On this point, Kymlicka and Rawls radically differ. According to Kymlicka, the principle of “autonomy” is necessary for the defense of individual freedom, whereas according to Rawls, the support of toleration based exclusively on autonomy ties pluralism to an excessively narrow conception of the “good life” and is therefore an obstacle to his attempt to provide a maximally broad consensus for toleration within a political structure. This essay focuses on the problem of whether autonomy is a necessary condition for individual freedom. I contend that toleration can be more successfully defended without appeal to the possibility of autonomy or to its value. I also attempt to defend an even more cogent argument that basing individual freedom on the notion of autonomy could lead to imposing a particular conception of the good life on individuals who do not perceive autonomy as valuable. This second argument also reveals differences between Kymlicka’s view and my own regarding the scope and nature of group rights within a framework of individual freedom. Before entering the problem of the relationship between individual freedom and autonomy and its implications for group rights, I will address Kymlicka’s historical argument and clarify Rawls’s conception of pluralism. The millet system was not an attempt to build a consensus among believers of radically different religious worldviews concerning the nature of a pluralistic society. In the Ottoman experience, the dominant power, that is, the Muslims, granted weaker minorities self-rule in religious matters. Rawls would not consider such an arrangement to be a genuine case of religious toleration, not only because it does not involve individual freedoms but because it was done in a framework of extreme asymmetry of power. Rawls is searching for a case in which radically different communities are involved in shaping a shared political structure. In such a case, according to Rawls, the fact of pluralism would force all the groups to liberal neutrality, because they would avoid giving priority to a particular conception of the good life in shaping the basic structure of society and its norms. It seems that such a scenario is very far from the millet system and indeed is unprecedented before the Reformation. The asymmetry of power in the millet system is itself a violation of pluralism in its most basic form. In the Ottoman Empire, unequal distribution of power was also based on religious affiliation. Minorities were discriminated against regarding equal access to political power, merely because they belonged to other faith communities.
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Cultural Legacies or State Collapse? Probing the Postcommunist Dilemma
Stephen Holmes
In one vertiginous decade, the term “postcommunism” has gone from being virtually inconceivable to being shockingly self-evident, only to revert to being flatly unintelligible once again. To a limited extent, we comprehend the postwar period, but not even a coherent disagreement about what cluster of factors triggered the earthquakes of 1989 and 1991 has taken shape, and informed observers readily acknowledge that the shattered and ceaselessly evolving ex-East bloc still lies beyond our powers of classification. Indeed, the future seems more unknowable than ever, which is why the overused term “transition” should probably be junked, implying, as the noncommittal “postcommunism” does not, that we somehow know where we are headed. Optimists and pessimists will no doubt continue to sneer at each other in the journals, but their exchanges probably tell us more about their own moods than about the future of the region. While seven years have elapsed since the old systems began to dissolve and the military division of Europe was ended, Western politicians and political scientists continue to stumble forward, groping in the dark. True, essayists opine about the upsurge of nationalism and a return of the communists. And a farfetched analogy with the 1930s (Chicago or Weimar) is currently in vogue. But our wholly unforeseeable fin d'epoque still awaits its convincing interpreter. In the meantime, frequent references to “chaos” accurately express a general lack of confidence about emerging patterns and long-term trends. All we know for sure is that the multiple processes under way are unscripted and unsteered and that there is no guarantee of a happy end. One unfortunate consequence of our interpretive failure, so far, is that policymakers to proceed blindfolded, without a global account of the new world disorder, without a simple map to help them distinguish minor nuisances from lethal threats or to decide when an incident is a portent. Admittedly, to sketch a “simple map” is a formidable task. There is not one postcommunism, after all, but many postcommunisms, strewn across a fifth of the globe, comprising 27 countries with over 400 million inhabitants. One-size-fits-all theories are obviously useless in such a sprawling context. The sheer miscellaneousness of the states and quasi-states in question is made even harder to bring into focus by the roller coaster of political, social, and economic developments throughout the region. Although some exceedingly interesting scholarly works have begun to appear, the basic inscrutability of the swiftly changing scene is undeniable. Even a well-researched journal article is likely to have a painfully ephemeral shelf life. Inundated by an unmasterable flood of half-reliable and arbitrarily selected facts, anecdotal or statistical, specialists speculate and surmise. They extrapolate trends from crumbs of information and are quickly overtaken by unfathomable events. Surface conflicts are brightly lit, but deeper changes remain shrouded in darkness. Electoral percentages are duly reported, but their wider implications are not well explained. The situation in Russia has been particularly fluid and difficult to interpret. No one has any idea what will happen when Boris Yeltsin passes from the scene. Even if CIA spymasters could infiltrate the innermost Kremlin and secret police circles, they would still be clueless about what was happening in the rest of the vast Russian Federation or even, for that matter, elsewhere in Moscow. What forces may counteract or accelerate territorial unraveling? How reliable is the chain of command? Will privatization hit a snag once unwieldy state enterprises contain nothing more worth stealing? Will the wholesale larceny of state assets by public officials and “red directors” eventually produce a popular backlash? Was the war in Chechnya a turning point, or just another bump in the road? What do seemingly endless contract murders of bankers, businessmen, deputies, and TV personalities mean for the country's future? And how will generational conflicts, which are increasing with time, play out politically? To watch Russian politics is to observe a football game through a soupy fog where you can make out the teams only faintly and in outline, where you are unsure who has the ball or which way he is running, and where you strongly suspect there are some other strange players on the field whose intentions are perhaps sinister but in any case unknown. The variety, complexity, and pauseless revamping of postcommunist systems baffle students and practitioners alike. But part of the difficulty for onlookers, domestic as well as foreign, stems from the fact that embezzlers and asset-strippers dislike being observed. Many important actors in these societies are waist deep in clandestine operations where millions of dollars are at stake. With immensely valuable state assets and raw materials waiting to be carted off or acquired semilegally at dirt-cheap prices, “cherry pickers” have learned to organize their lives in order to deceive the eye. Official statistics, as is well known, are useless indicators of activity in the unrecorded shadow economy. Off-the-books transactions, kickbacks, cash-filled envelopes, and forged invoices are ubiquitous, as is natural when newly prosperous individuals strive to present a moving target to tax collectors and ruthless extortionists, as well as to stockholders and bureaucratic overseers. Skills of duplicity and disinformation, not to mention cloakroom “connections” and techniques for ducking public responsibility, all honed under the old regime, have proved unexpectedly useful, and not only to privileged groups, in the new conditions.
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Ordinary Passions in Descartes and Racine
Stephen Holmes
Not even the most circumspect political theorist can refrain from making controversial assumptions, however latent or inchoate, about elemental human endowments and proclivities. The choice between pessimistic and optimistic assessments of mankind's capacity for rational behavior reminds us that unspoken psychological premises may also have sweeping political implications. The anti-utopian liberalism of Montesquieu, Constant, and Tocqueville, for instance, is deeply indebted to classical French moral psychology. Liberal political theory, as they developed it, depends less on a fantasy model of rational egoism than on seventeenth-century theories of violent and mindless passions and the extraordinary unlikelihood of self-control. As Bernard Yack has remarked, such apprehensions were also central to Judith Shklar's “liberalism of fear.” Her political theory—like that of her liberal heroes—was founded on an unflattering but plausible conception of human character and motivation. In this chapter I will examine, in a modestly Shklaresque vein, the account of destructive and self-destructive behavior contained in two of the most provocative and influential works of classical French moral psychology. Descartes's theory of mental fixation, coupled with Racine's portrait of emotional dissonance and its consequences, helps give strikingly precise contours to the irrationality postulate underlying so much of modern liberal thought.
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The Regulation of Trade in Electricity: A Canadian Perspective
Robert L. Howse and Gerald Heckman
In this chapter we attempt to provide a comprehensive overview of trade in electricity and its regulation from a Canadian perspective. We are grateful for comments and criticisms on an earlier draft of this paper by participants in the University of Toronto Electric Power Project, as well as Michal Gal. Section I describes the technical and economic basis of trade in electricity in the North American context. Section II examines the existing domestic regulatory framework for international trade in electricity in both the United States and Canada, at both the federal and state levels. The international legal framework for trade in electricity between Canada and the United States is considered in Section III, with reference to both GATT/WTO and NAFTA. This part of the chapter reviews the consistency of existing domestic regulation of electricity trade with GATT/WTO and NAFTA rules, and also speculates on the manner in which these rules will affect trade in electricity under circumstances where at least some jurisdictions in North America have moved substantially towards either wholesale and/or retail competition. Section IV considers trade in electricity within Canada across provincial borders, and discusses the constitutional rules affecting such trade and its regulation. The issue of the role of the federal government in assuring an integrated market in electricity is addressed, and some of the implications of pro-competitive regulatory reform for interprovincial trade are also outlined. Finally, in Section V we attempt to provide a comparative perspective on trade in electricity in North America by briefly examining trade in electricity and its regulation within the European Union, including the progress of efforts to create a single European electricity market.
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Bargaining Impediments and Settlement Behavior
Samuel Issacharoff, Charles Silver, and Kent D. Syverud
TThere is considerable popular support for two propositions: too few disputes settle, and too many that do settle drag on for too long. There is likewise a widespread tendency to hold lawyers largely, if not exclusively, responsible for both problems. The popular belief—reflected in the Republican Contract With America, the Attorney Accountability Act, the Manhattan Institute proposal to reform contingent fees, the pronouncements of conservative commentators, and the remarks of then Vice-President Quayle to the American Bar Association--is that lawyers foment controversy and prolong litigation because they make money by doing so. The logic is simple and, for many politicians and voters, it is compelling. Although academics may be less inclined than the general population to blame lawyers for these problems, some, especially those involved in the development and implementation of alternative dispute resolution techniques, endorse the popular wisdom about the protractedness of litigation and the frequency of trials. For these scholars, it is almost an article of faith that litigation occurs too often, lasts too long, and costs too much. The numbers enable them to make a credible case. For example, an insurance industry publication indicates that 12 percent of every dollar of earned premium from private passenger automobile insurance is spent on lawyers' fees, with plaintiffs' attorneys and defense lawyers dividing the spoils in nearly equal shares (Mooney 1994). Another striking example can be found in a famous Rand study of asbestos litigation, which determined that claimants netted only 37 cents of every dollar spent by both sides, the remaining 63 cents being consumed as litigation costs. The numbers are not entirely one-sided, however. Studies suggest that trials occur in only a tiny fraction of tort disputes, that the majority of disputes that make their way into the legal system settle fairly quickly and with little or no discovery, and that exceptional cases in which trials occur or extensive discovery is undertaken tend to be complicated, high-dollar, multi-party affairs. These studies suggest that an alternative economic logic is at work, one linking the level of resources devoted to litigation to the amount in controversy and the complexity of a dispute. Economists of law have also considered why lawsuits proceed to trial. According to the most widely-accepted economic model, litigation is a negative-sum game for litigants. The longer play continues, the less the participants' aggregate wealth because they must expend on litigation money they could save by settling. Even if five percent or fewer of all controversies that make it into the courts ever get to trial, it is a puzzle to explain why so many disputes reach the point of litigation and why so many lawsuits are tried. Economists and others who have applied the model offer a variety of explanations for the frequency of protracted litigation and trials. One view is that trials occur because disputants make errors when estimating their chances of winning, especially when the alleged wrongdoer's level of culpability is near the level at which liability will be imposed. Although this view continues to have supporters, an empirical study of tried cases casts its validity in doubt. Another possibility is that because the legal system systematically under-produces information about legal norms, parties make mistakes identifying applicable legal standards and are unable to agree on likely trial outcomes as a result. Economists have also supplied an answer that echoes the popular wisdom about lawyers. Some scholars argue that protracted litigation and trials occur because lawyers are compensated on the basis of the amount of time they spend on a case. This opinion puts at least some of the blame on opportunistic lawyers. A different view that holds lawyers responsible but not blameworthy is that litigation involves parties in economically wasteful “Prisoner's Dilemmas”. Each party finds it rational to employ a lawyer-agent because doing so improves a party's expected outcome in litigation. However, when both sides are represented, neither gains a net advantage because the efforts of the opposing lawyers cancel out. This explanation is delightfully perverse. In contrast to the preceding explanation, which argues that litigation costs are high because lawyers disserve their clients, this explanation suggests that lawyers are responsible because they serve their clients too well. If clients gained no advantage from having lawyers, the dominant strategy of obtaining representation would break down and the problem of high litigation costs would disappear. In all likelihood, trials and protracted litigation occur for many reasons, only some of which have been touched upon. In this chapter we will offer our views on certain aspects of the forces that lead to litigation and summarize the results of some on-going empirical work on settlement. Our purpose will be to shine light into the black box that is the economic model of the decision to settle or sue and to suggest ways in which the model may need to be made more complex. The model leads one to wonder why protracted lawsuits and trials occur partly because it addresses neither the way participants in litigation process information about expected trial outcomes nor the dynamics of the bargaining games participants must play before settlements can be worked out. Empirical evidence, including experiments performed by one of the authors, suggests that participants in lawsuits often use information in faulty, biased ways, so that their estimates of trial outcomes make settlement less likely. Economic reasoning suggests that settlement games can have complex dynamics even in relatively simple disputes. It is easy to see that lawsuits may often become protracted and perhaps fail to settle when these dynamics are understood. Empirical study of settlement practices sheds further light on why settlements sometimes fail to occur. When discussing the dynamics of settlement, we will also suggest that lawyers are as much responsible for the high rate of settlement that prevails as they are for the frequency of trials and protracted litigation. Our experience studying disputes and the legal profession leads us to think that it is at least as accurate to describe litigating lawyers as settlement engineers or “friends of the deal” as it is to characterize them as pit bulls. Each of us is familiar with many, many instances where lawyers worked hard to settle complicated, multiparty disputes that posed extremely difficult questions of liability and damages. They did not always succeed, but their willingness to work hard for settlement is worth noting. A real difficulty is accounting for their failure. If lawyers are at least partially motivated to settle, and if litigation is a negative-sum game for litigants, how can settlement not occur? We hope to shed light on this and related questions below. In the first section of this chapter, we will summarize evidence bearing on the manner in which people process information about issues in contested litigation. The economic model bases the likelihood of settlement on the expectations of the parties. The processes by which these expectations form are more complicated than one might suspect, and they are worth studying in depth. In the second section, we talk in general terms about the dynamics of settlement games. These games must be played even when parties' expectations align. They can be quite involved, even in relatively simple disputes. By discussing a single example in some detail, we hope to convey a sense of that complexity and to suggest that lawsuits may often become protracted, despite the participants' willingness to settle, because settlement games are difficult to play. Finally, in the last section, we will summarize the results of an empirical study of settlement practices that tests the accuracy of the economic model of settlement.
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Grotius, Law, and Moral Scepticism: Theory and Practice in the Thought of Hedley Bull
Benedict Kingsbury
Hugo Grotius (1583–1645) was accorded a prominent position in the canon of that approach to ‘classical theories of international relations’ developed by Martin Wight, Hedley Bull, and others in the British Committee on the Theory of International Politics—an approach that was both the inheritance and the legacy of the much-missed R. J. Vincent. Wight posited a ‘Grotian tradition’ of thought, which he used in counterpoint with other traditions (Machiavellian/Hobbesian, Kantian) to elucidate important problems in international relations. Bull adopted from Wight much of the language of the three traditions, while pointing explicitly to their limitations, but Bull’s systematic rigour caused him to distinguish sharply between the writings of Grotius and the tenets of a ‘Grotian tradition’, and he was decidedly cautious as to the senses in which any such tradition could usefully be said to exist. Bull more than Wight produced analyses of particular works of Grotius intended to demonstrate, quite apart from any connections with ‘neo-Grotians’ or a ‘Grotian tradition’, their intrinsic interest for modern students of international relations. In these various enterprises Wight and Bull were influenced by the varying but increasing interest in Grotius among international lawyers from about the middle of the nineteenth century, and especially by the efforts of Van Vollenhoven and Lauterpacht in the wake of the two world wars to expound a ‘Grotian tradition’ of international law for the twentieth century. This chapter deals with aspects of Bull’s use of Grotius, focusing in particular on Bull’s reluctance to follow Grotius’s views on the nature of law and on the possibilities of moral commitment in the face of the challenge of moral scepticism. Writing about Grotius in international law and relations has treated Grotius primarily (although not exclusively) through analysis, against the background of his biography and the history of his period, of a small though important subset of his extensive oeuvre. Vastly the most important of these has been De Jure Belli ac Pacis (On the Law of War and Peace, JBP), completed in 1624 and first published in 1625. That JBP received significant attention is evident from the numerous subsequent editions (Grotius himself worked on editions published in 1631, 1632, 1642, and 1646) and translations, although a comprehensive study of its intellectual impact has not yet appeared. Grotius also had an impact on contemporaries and subsequent generations through Mare Liberum (Freedom of the Seas), which was published (anonymously at first) in 1609, apparently with a view to providing juridical support for positions taken by Grotius’s patron Oldenbarnevelt in the domestic and international political manoeuvring leading to the 1609 truce between the United Provinces and Spain. The main lines of JBP, and the entirety of Mare Liberum, were anticipated in De Jure Praedae (The Law of Prize) (JP), written in the period 1604–6 as a work of legal advocacy connected with the seizure by a vessel of the Dutch East India Company (the VOC) of the Portuguese carrack the Catharine. Because JP was substantially unknown until the rediscovery of the manuscript in 1864 and its publication four years later, JP had little direct impact on the development of ideas, although it has attracted considerable scholarly attention as evidence of Grotius’s thought in the milieu of the period, and it is of great value in understanding the structure and arguments of JBP. The work of Quentin Skinner, J. G. A. Pocock, Richard Tuck, and others of the historiens historisants represents a methodological reproach both to the decontextualized analysis of historic texts of Western political theory, and to loose assertions about the existence of 400-year traditions of thought. These writers have sought to locate each author in close intellectual context, recovering the normative vocabulary available to the author from earlier writings then accessible, tracing the author’s intellectual formation and inheritance, and connecting the author’s texts with the political, theological, social, and intellectual debates or circumstances that seem to have affected them. For the historiens historisants, as Pocock once put it, ‘history of theory cannot be written as that of a dialogue between figures in a canonical tradition’—the organisation of history into a canonical dialogue is to reduce history to historical drama, in which the canonical actors are isolated in each other’s company and can be interacting with each other only in accordance with the ideal of the author. The canonical dialogue may be theory, but it is not history of theory. ‘The text as the theorist reads it is not the same things as the text as event, or part of an event, reconstituted by historians. If the historian must abstain from deconstructing the theorist’s encounter, the theorist must abstain from trying to reconstruct history. . . . If the two are combined, the result must be pseudohistory, myth-as-history, or Popperian historicism.’ For a historian of the Pocock/Skinner school, Grotius ‘demands assignation to contexts: to his own, which we must recover if we are to understand him, and to our own, in which we must read him if we are to interpret him.’
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Contract Law
Charles L. Knapp
In the United States, contract law is the term generally used to describe the body of rules applying to the formation, performance, and termination of private consensual agreements. In the Anglo-American system, contract law has traditionally been a common law area, with judicial decisions in individual contract disputes serving as precedents for the decision of later similar cases. Statutes of various kinds (federal, state or local) are apt to be important in defining the rights and duties of parties to particular types of private agreements, but with the exception of the Uniform Commercial Code, there is no statute with implications for contract law in general. In the American federal system, contract law is an area generally governed by state rather than federal law. Although it has been traditional to teach and write about contract law as though it were a single body of rules applicable uniformly throughout the nation, in fact any dispute involving contract enforcement will be resolved in accordance with the contract law of the particular state whose law governs the transaction.
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Comment
Lewis A. Kornhauser
In a provocative essay, Professor Baigent criticizes the “bare” or “stark” conception of practical reason embodied in the formal models of decision theorists, economic theorists, and game theorists because it precludes the analysis of “deliberation.” Moreover, Professor Baigent argues that acknowledgement of deliberative aspects of practical rationality leads one to reject a fundamental premise of the standard theory. I agree with the criticism of rational choice theory but I think that Professor Baigent’s argument neither succeeds fully nor goes sufficiently far to provide a basis for the formal modelling of deliberation. In the theory of rational choice, each agent has an extremely simple “psychology” or “motivation.” To decide, an agent consults her preference ordering (variously over outcomes, lotteries, or actions) and her beliefs. As Professor Baigent notes, no interpretation of the formal theory admits a plausible account of deliberation. Often, the analyst interprets this preference ordering as “desires” on which the agent acts directly. The ordering might as easily be interpreted as an “all-things-considered” set of judgments. This second interpretation apparently admits a more complex weighing of reasons but the ordering resolves whatever conflicts the agent may face among her desires and other reasons for action such as morality. Thus, all deliberation precedes the invocation of rational choice theory. That the resolution of these conflicts results in a complete and transitive ordering may appear to be an heroic assumption and it is that assumption that Professor Baigent attacks. The formal models exclude completely a second form of deliberation as well. In the models, the ordering by which the agent evaluates her option in lights of her beliefs is “fixed,” or a datum of the problem. The models thus exclude the possibility that agent’s evaluative norms develop from (or within) choice situations themselves. Both these theoretical simplifications contrast sharply with Aristotelian views of practical reason. Specifically, practical reason, under the Aristotelian view, is characterized precisely by conflicts among incommensurable values and the by the need to articulate clearly the values that the agent holds. Professor Baigent offers a framework in which non-prudential concerns may not only influence an agent’s choices through their incorporation in an all-things-considered ranking but one in which non-prudential concerns might be said to conflict with or override prudential ones. To accomplish this end, Professor Baigent substantially modifies the standard decision-theoretic model. Most fundamentally, he assumes that each agent has a set of (first-order) preferences over alternatives and then he introduces a set of metapreferences over subsets of first-order preferences.
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Conceptions of Social Rule
Lewis A. Kornhauser
Now comes the chapter by Kornhauser that begins with the distinction of three senses of “rule” anticipated early in the book as a point of departure for the book as a whole and then for departure immediately into the explication and application of “rule” in the third of Kornhauser's senses—the sense appropriate to the issue-processing perspective. In his paper, Kornhauser moves on from the distinction to treat rules as devices created to seize game-theoretical opportunities for benefits from social cooperation; and argues that this sort of treatment should be extended to many more cases than hitherto have been brought under it
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Notes on the Logic of Legal Change
Lewis A. Kornhauser
Commenting on Silver's paper, Kornhauser points out that (for all that it is concerned with changes in rules) it shifts to a very different perspective on legal change from the one found in Bonfield's contribution and (it might be added) in the other contributions that have been classified here as adopting an issue-processing perspective. Silver's perspective is the perspective of economists.
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Proofs Relating to Chapter 11
Lewis A. Kornhauser
This collection is a pioneering effort to bring together in fruitful interaction the two dominant perspectives on social rules. One, shared by philosophers, lawyers, anthropologists, and sociologists, directly invites formalization by a logic of rules. The other, originating with economists, emphasizes cost considerations and invites mathematical treatment, often in game-theoretical models for problems of coordinationmodels that some philosophers have taken up as well.Each perspective is represented by new and recent work that moves this important topic toward increased conceptual precision and deeper insight. As a whole, the collection strikes a balance between historical illustrations and theoretical argument, offering in both a rich body of suggestions for further work.
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