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  Commentary on Rewarding Whistleblowers: The Costs and Benefits of an Incentive-Based Compliance Strategy

  Jennifer H. Arlen

  This volume looks at globalization and rapid technological change and investment spending, particularly in the areas of technology and human capital accumulation, as the key determinant of business success and national economies. The book suggests that the role of corporate governance and the strategies of business organizations is paramount as major elements that affect investment decisions. For example, the economic difficulties experienced by many well-known global corporations in the 1980s and 1990s underscore the importance of corporate decision-making in managing the challenges of change effectively. The issue of corporate governance is addressed in this volume from both an economic and a legal perspective, examining the elements of the modalities of decision-making, the role of incentives, institutions and their relationship to the corporate governance process and their impact on Canada's economic performance.

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  Environmental Justice and Equity Issues

  Vicki L. Been

  The definitive treatise on zoning, land use and environmental law on the federal, state and local levels.

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  The Language of Rights and European Integration

  Gráinne de Búrca

  It is the aim of this collection of essays to broaden the horizon of scholars, particularly those in law, by exploring from a range of theoretical positions the often unchallenged assumptions of the European Union, the Single Market, the institutions which have created and still control it, and the policies which continue to shape its future. The contributors offer a shared belief in the value of theory as a tool to explore new dimensions of the subject. Thus readers will find essays on the Single Market, Market citizenship, migrant workers, social policy, labour market flexibility, the GATT and community law, the free movement of goods, EC utilities law and policy, telecommunications, legislative review, litigation strategy and the EOC, community tax law, and the European Union and postmodernism.

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  Win-Win Labor Law Reform

  Samuel Estreicher

  Legislative stalemate is likely to occur after the Dunlop Commission on the Future of Worker-Management Relations issues its recommendations this fall. Although I favor a comprehensive reform of the labor laws to make the system work better in a world of competitive product markets, there may well not be sufficient public support or sufficient basis for a trade-off between labor and management objectives to yield legislative change in the near future. What the contestants want is clear enough. Representing under 12 percent of private-sector workers, organized labor would like to see a major overhaul of the labor laws to lower the costs of organizing workers and bolster its bargaining power. Labor's wish-list includes representational authority on the basis of authorization cards in lieu of elections, fines for retaliatory discharge of union supporters, interest arbitration in first-time bargaining situations, restrictions on the hiring of replacements for economic strikers, and the like. Management, on the other hand, is generally content with the status quo, although it would like some greater latitude to form worker-employee committees that would address productivity and quality improvements. Many of these reform proposals from both sides share a zero-sum feature: New rules that strengthen labor's hand would do so at the expense of managerial flexibility, and any greater freedom for management to pursue employee involvement initiatives would be viewed as simply providing additional fuel for deunionization forces. I am writing in the hope that in the sturm und drang of the debates over U.S. labor law reform, policymakers will not lose sight of the potential for "win-win" improvements of the legal regime for worker representation. Such proposals would ease certain restrictions in existing law, expanding opportunities for unions and employers to reach agreements and to adjust to changing realities in competitive markets, without diminishing (or enlarging) the existing bundle of rights of either side.

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  Law, Legislation, and Positive Political Theory

  John A. Ferejohn

  The study of politics is dominated by what might be called a “legislative” view of government. In this view government proceeds largely through enacting general rules to channel social and economic conduct and then using more mundane administrative means to enforce them. This emphasis on legislation encourages us to see other institutions and practices in terms of their connection to or similarity to the legislature. Thus, electoral studies are frequently justified or motivated by their consequences for selecting lawmakers or expressing “mandates” for new laws; presidents are often seen and judged in terms of their role in the legislative process; and administrative agencies and courts are seen as quasilegislative bodies, promulgating general rules and regulations. If the Founding Fathers were wrong to fear congressional dominance of other national institutions, they were perhaps prescient in foreseeing how the legislative model would dominate the way we have come to understand government. This focus on legislation while, perhaps, natural enough in a democratic nation—statutes are, after all, the principal normatively sanctioned route by which public opinion is translated into public action—produces a distorted description of governmental activity. The centrality of legislative studies suggests that there is a simple relationship between statutes and the law by which we live.

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  Reforming the Initiative Process

  John A. Ferejohn

  It is dangerous to tamper with the initiative process. Public interest groups and the press are always ready to discredit attempts to weaken or limit the initiative process through the usual means (increasing signature requirements, limiting the topics that can be included in initiatives, and the like). Such efforts bear the marks of self interest so clearly as to arouse immediate suspicions no matter what their merits. "Of course elected politicians want to limit the effects of the initiative," so the complaint goes, "it is in their interest to do so." The gingerly handling of Proposition 13 by elected officials is testimony to the general fear in Sacramento of fooling around with the initiative process. Following the passage of a particularly troubling initiative, elected officials must simply resign themselves to prayer that (elected) state or federal judges will undertake to limit or overturn the measure. Lacking judicial relief, they can only resort to hand wringing and abstract complaints about the process; direct attempts to modify the people's judgment are generally doomed to failure.

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  The Development of the Spatial Theory of Elections

  John A. Ferejohn

  In the social disciplines there is a growing movement to use disciplinary history as a means of accounting for the present status and possible futures of various modes of social and political inquiry. In this collection of essays, a number of political scientists take up the challenge of disciplinary history by exploring a range of themes and movements that have shaped academic political science today. These essays should be of interest to any student of the social disciplines who is interested in understanding both the development of modern political science and its current concerns.

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  Criminal Antitrust Enforcement

  Harry First

  For many years critics of antitrust policy have argued that the antitrust laws were not being adequately enforced on the criminal side. The Sherman Act, passed in 1890, prohibits in broad language ‘contracts, combinations, and agreements in restraint of trade" as well as "monopolization". Violation of the statute has been a crime since its enactment. Nevertheless, criminal enforcement had traditionally been weak. In the first half-century of the Sherman Act there were only 173 criminal prosecutions, less than 3.5 criminal cases per year. Although historically there have been few criminal prosecutions, early enforcement efforts did show a willingness to pursue important corporations through the criminal process. Four years after the Sherman Act was passed there were proposals for criminal prosecution of the “Tobacco Trust” arid, in 1906, the government did prosecute officers of an American Tobacco Company subsidiary for an attempt to monopolize trade. In 1912 thirty executives and employees of the National Cash Register Company (the pioneer in the cash register business, with ninety-five percent of the market) were prosecuted criminally for creating a monopoly. As late as 1940 the Government was still willing to use criminal enforcement to proceed against monopoly. These efforts notwithstanding, by the 1950s one could fairly say that criminal enforcement was not only infrequent but was also carefully constrained. The 1955 report of the Attorney General's National Committee to Study the Antitrust Laws wrote that then-current enforcement criteria “insure[d] that criminal action will be limited to outright price fixing, boycotts, racketeering and the like when such misdeeds occur in areas where antitrust coverage is well settled. As the 1960s began, criminal enforcement criteria did not change, but the Government did catch some substantial corporate violators. Twenty-nine electrical equipment manufacturers, including the General Electric Company, plus a number of their executives, were prosecuted for a long-standing conspiracy to rig bids and fix prices on the sale of heavy electrical generating equipment. This major criminal prosecution against a Fortune 500 corporation attracted national media attention, including a famous Life Magazine cover showing the convicted executives (seven were sentenced to all of thirty days in jail) grasping the bars of their cells. Perhaps as importantly, the convictions opened up the era of private antitrust treble-damage actions. In the “follow on” cases subsequently brought, substantial monetary relief was obtained by the victims of the price-fixing conspiracy, notably government entities that had purchased equipment through what they had thought was a system of competitive bidding. This one-two punch seemed like just the sort of deterrence Congress had ordered in 1890. Although the 1960s brought some increase in attention to criminal prosecutions, other antitrust problems moved to center stage. The government showed itself more willing to challenge mergers, and the courts readily agreed with the government's position. By the end of the 1960s, the government had embarked on a broad and ambitious civil enforcement agenda, which included an attack on anti-competitive government regulation, litigation against conglomerate mergers, and monopolization litigation against IBM. Criminal prosecutions continued, but the sights were lowered. The potato-chip industry (one target of criminal prosecution) was not on quite the same level as the electrical equipment manufacturing industry. The 1970s were characterized by a convergence of two somewhat conflicting trends. First, the courts became less generous towards the government's position in antitrust cases. In 1974 the government suffered its first loss in a merger case in the Supreme Court since 1948, while doctrinal developments (often occurring in the context of private civil litigation) showed that the courts had become far less willing to condemn alleged anti-competitive agreements as per se illegal. At the same time, government enforcers began to respond to the persistent criticism that inadequate attention had been paid to criminal enforcement. Between 1970 and 1975 criminal prosecutions increased by more than fifty percent over the previous five years. This increased attention to the criminal side received legislative impetus in 1974 when Congress amended the Sherman Act, making a violation a felony rather than a misdemeanor and increasing the penalties substantially. Corporate fines jumped from a maximum of $50,000 to $1 million; prison time, from one year to three. In 1976 the head of the Antitrust Division in the Ford Administration appeared personally in court to argue for imprisonment of corporate executives in a criminal prosecution. And in 1977 the Antitrust Division issued its own “Guidelines for Sentencing Recommendations in Felony Cases Under the Sherman Act,” which called for substantially longer prison terms than judges generally imposed even under the newly enhanced statute.

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  Criminological Knowledge and its Relation to Power: Foucault's Genealogy and Criminology Today

  David W. Garland

  This paper arises out of an attempt to formulate a series of questions with which to approach research on the history of criminology in Britain. It begins by questioning some aspects of Michel Foucault's influential characterization of criminology as a disciplinary knowledge which serves to legitimize and extend modern penal power. It then proceeds to suggest an alternative approach which retains key elements of Foucault's analysis but places these within a wider framework of inquiry. Foucault argues that criminology emerged from the disciplinary practices of the prison; that it serves to legitimize penal power by representing punishment as a scientific procedure; that it provides the knowledge of offenders necessary to modern normalizing practices; that the subject's raison d'etre rests upon its being ‘useful for power’; and that modem criminology has remained ‘extremely close to the disciplinary power that shaped it’. I will suggest that this conception needs to be reworked in a number of respects if it is to serve as a basis for thinking about modern criminology and its social functions. In particular, the question of criminology's relation to ‘power’ needs to be better specified to allow a more differentiated description of forms of power, forms of criminology, and the various ways in which they relate to each other. My purpose in criticizing Foucault is not to defend the discipline of criminology against his trenchant criticisms. Nor is it my purpose to deny Foucault's fundamental claims about the intertwining of knowledge and power in this and other spheres of social life, although I will suggest that these claims require elaboration in this instance. Rather, it seems to me that Foucault's account—which has influenced much recent research and commentary on the discipline, including my own—does not adequately depict the character and range of criminology, particularly modern twentieth-century criminology, and needs to be reworked and extended if it is to serve as a guide to further research.

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  Frameworks of Inquiry in the Sociology of Punishment

  David W. Garland

  Giving a proper name to an entity can often make it seem more substantial or more unified than it actually is, so perhaps my title's reference to ‘the sociology of punishment’ needs to be put in perspective. I take the sociology of punishment to be that body of thought which explores the relations between punishment and society, its purpose being to understand legal punishment as a social phenomenon and thus trace its role in social life. Seen in these terms, the sociology of punishment is not a long-standing or well-developed tradition of social thought. Until quite recently there was only a handful of genuinely sociological studies focusing upon punishment, and of these, only the work of Durkheim was able to make any serious impression upon sociological thinking. The modern discipline of sociology has not chosen to use penal institutions as a focus for its researches or as a basis for its theoretical reflections, and this despite the early examples of Montesquieu and de Tocqueville, both of whom demonstrated the significance of punishment as a topic of social inquiry. To the extent that punishment found a place in the social sciences prior to the 1970s, it was as a subject for penologists, who tended to approach the matter as an administrative or technical issue rather than as a sociological one. Only occasionally did the writings of thinkers such as Mead, Garfinkel, Sykes and Goffman remind us of the wider meanings of society's punitive measures. In the last fifteen years or so things have begun to change. Studies of penal institutions now stand at the centre of a lively and expanding literature which highlights the role played by penality in the construction of political order, the furtherance of state control, and the constitution of individuals as social subjects. Historians, philosophers, sociologists, criminologists, even literary scholars, have been moved to explore the realm of legal punishment and to recover the insights and illuminations which it has to offer about our social world. As a consequence, the area is beginning to realize some of its potential as an intellectually stimulating field of inquiry where what is at stake is not just the workings of penal policy (important as that is) but also the working of society and its social institutions. One of the key events which helped stimulate this resurgence of interest in the sociology of punishment was undoubtedly the publication in the mid-1970s of Michel Foucault's Discipline and Punish. On the one hand, Foucault's work demonstrated to a wide audience of historians and social theorists the far-reaching sociological significance of punishment and the kinds of insights which might be gained from a close examination of its practices. On the other, it connected with the concerns of many sociologically-inclined criminologists who had already begun to develop a skeptical critique of modem criminalizing processes—using interactionist or radical theories of deviance—and who found in Foucault's work a more powerful set of tools for the analysis of state control. Discipline and Punish seemed to fit perfectly with the theoretical and ideological concerns of many writers who were studying the agencies of penal regulation, and its assimilation gave their work a theoretical refinement and an apparent political importance which it had not had before. Given the centrality of Foucault's thought to the emergence of contemporary work in the sociology of punishment, it is no surprise to find that Foucauldian conceptions and descriptions now stand at the very heart of this literature. Key Foucauldian terms such as ‘discipline’, ‘surveillance’, ‘power-knowledge’ and ‘normalization’ are now routinely used and debated, while more familiar ideas—such as ‘the widening of the net’ of penal regulation, or the spread of ‘soft social control’ are now articulated through a Foucauldian language. Since 1975 the meaning of welfare sanctions, the functioning of the modem prison and the significance of classification and assessment have all been reconceptualized in the literature in ways which are deeply indebted to Foucault's ideas. By and large, this has been a positive influence. It has raised the level of theoretical discussion and widened the range of work being done. But precisely because the sociology of punishment is an underdeveloped tradition, there is a danger that the influence of one powerful perspective can dominate thinking in a way which is intellectually constraining and ultimately counterproductive. Already one can discern a tendency to subsume the analysis of punishment within a skeptical ‘sociology of control’ in which the main concern is to reveal the ways in which punishments embody or enhance the regulatory power of the state and social institutions. And while these texts are often interesting and valuable in themselves, it seems to me that this particular 'way of seeing' renders invisible many important aspects of the phenomenon. The present paper is an attempt to point up some of the limitations of the perspective which has grown up in the wake of Foucault's work and to argue that an understanding of punishment will require a wider, more flexible, and more multidimensional framework than that suggested by Discipline and Punish.

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  Penal Modernism and Postmodernism

  David W. Garland

  There is a widespread sense today that contemporary penality is undergoing some kind of transformation. Until quite recently, accounts of contemporary penal transformations tended to be quite narrow in their focus and quite modest in their claims. In the last year or two, however, a ·new and stronger thesis is beginning to emerge; one that is much broader in its scope and much deeper in its implications. The new suggestion is that the penal realm, like other areas of social and cultural life, is becoming in some sense “postmodern,” and that this historic shift forms the broad explanatory framework within which the diverse trends of contemporary penality can best be understood. Postmodernism is, of course, very old news in cultural studies, social theory, and some branches of philosophy, where the term has been a hot topic of debate for the last fifteen years. Once the term postmodern escaped from the lexicon of artistic styles into broader debates about the nature of contemporary experience, it rapidly become a kind of catchall adjective to describe the various intellectual and political predicaments of an age in which foundational claims (in respect of knowledge, value, truth, and so on) are viewed as “mere” conventions. Now, a decade and a half later, when the word has begun to lose its initial incendiary appeal, and has started to settle down as a more or less defined position in a number of well-worn debates, it has at last reached the distant shores of criminology and penology, where its precise implications have yet to be worked out. The importation of modish intellectual terms is often dismissed as the product of an academic fashion industry, driven by the marketing strategies of publishers and the status concerns of writers who hope to impress by their taste in terminology. But it is also the case that writers who are seeking to develop new perspectives in their field do so using the language and concerns of contemporary intellectual life. Consequently, the appearance of the vocabulary of postmodern ism in this latest field is liable to produce original insights and radical perspectives as well as the slavish repetition of fashionable postures developed elsewhere. One can only judge the matter in terms of the substantive analyses actually produced, and seek to avoid the polarized “love it or hate it” response that the mere mention of the term postmodernism now frequently provokes. The claim that penality is becoming postmodern takes a number of forms and has been put forward by a number of writers, but the precise meaning of the claim is still rather inchoate. Writers such as Stanley Cohen (1990) and Jan van Dijk (1989) have used the term postmodern to refer to certain aspects of contemporary criminological discourse. Others such as Carol Smart (1990), Alison Young (forthcoming), and John-Paul Brodeur (1993) have proposed postmodernism as an intellectual and political stance relevant to thinking about crime and punishment (and especially to thinking about that thinking). Robert Reiner (1992) has discussed the problems of policing what he terms a “postmodern society.” However the postmodernist thesis has been put forward in its strongest form by Jonathan Simon, first of all in an article entitled "The New Penology" [coauthored with Malcolm Feeley (Feeley and Simon 1992)] and more recently in his 1993 book Poor Discipline, where he titles one chapter “Penal Postmodernism: Power without Narrative” and explicitly raises the question “Are we postmodern?” (see also Simon 1991; Howe 1994; Schwartz and Friedrichs 1994; Henry and Milovanovic 1994). A common feature of these references to the postmodern is that they all have something of a gestural character. Their use of the term evokes a whole range of new attitudes, discourses, and practices, against the broad background of a new social and cultural configuration, but the precise meaning of the postmodern in criminology or penology is rarely specified in any detail. Even Simon's writings, which are by far the most substantive and interesting, are disappointingly thin when it comes to a positive characterization of what is postmodern about the present. (He is much better on what has become problematic about the modernist past.) Since most readers of criminological theory have some understanding of what postmodernism has come to mean in other fields, it has been possible to use the term in an ill-defined way and yet still succeed in communicating something (though that something is often very imprecise). At a minimum, the suggestion is that penality now increasingly exhibits certain new characteristics, which are distinguishable from those of the recent past (i.e., from “penal modernity”) and which resemble the kinds of postmodern phenomena that analysts have identified elsewhere in contemporary culture and society. The task of specifying precisely what the postmodern elements of penality might be is an important exercise that has not yet been undertaken. I hope that the analyses developed in the following pages may succeed in provoking further work in this direction.

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  Conceptions of Democracy in the Draft Constitutions of Post-Communist Countries

  Stephen Holmes

  The process of democratization in Eastern Europe is made more difficult by the painful legacies of the past, including, in random order, ethnic tensions, personal habits of dependency, low tolerance for economic inequality, the absence of a middle class, lack of experience with the rule of law and electoral politics, poorly trained judicial personnel, a willingness to accept rumor as a basis for political discourse, and a tendency to defeatism born of a regional inferiority complex vis-à-vis the West. These cultural and structural residua of communist and pre-communist periods, however, are not the only obstacles to reform. The weight of the past is matched by the weight of the present. For instance, the huge economic shock resulting from the overnight collapse of existing trade relations has produced the East European equivalent of the Great Depression. This is a new problem, not an old one. Although economic underdevelopment is partly a result of cultural and structural legacies of Leninism, the present economic catastrophe is the product of sudden decolonization—a regional breakup with which former members of the now-disbanded Soviet Empire were wholly unprepared to cope. Similarly, the past alone cannot be blamed for tensions resulting from the historically unprecedented combination of political and economic transitions. As Beverly Crawford points out in Chapter 1, there is an inherent paradox in using democratic means to create a government that will reform the economy, since democracy gives ultimate authority to an electoral majority that, in turn, will be most harmed in the short term by the pain and dislocation of economic reform. China suffers from most of the cultural and structural legacies that beset Eastern Europe but does not face the same economic problems confronting Eastern Europe because China has not attempted a simultaneous reform of both the polity and the economy. But the obstacle to reform that is perhaps most obviously not a legacy of the past is current-day Western advice. It may seem odd to describe the importation of political and economic models, patented in the West, as an obstacle to reform. We are certainly more accustomed to hearing complaints, perfectly justified I believe, about the absence of timely Western aid. For a sincere desire to become part of the West is admittedly one of the most promising features of post-communist societies, and one that may help these societies to overcome their tragic sense that endowment is fate-that the legacies of the past doom them to enduring penury and a never-ending seesaw between chaos and autocracy. Yet it remains reasonable to ask, in the field of constitutional law, which Western models are likely to be helpful and which are not, given the actual conditions in Eastern Europe today. Technology transfer is promising; however, it must be selective. Of the Western experiments with institutional design, which ones are most relevant for post-communist societies? What lessons can be carefully extrapolated from what cases and then usefully applied?

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  The Politics of Constitutional Revision in Eastern Europe

  Stephen Holmes and Cass R. Sunstein

  A constitution, among other things, is a document that is unusually difficult to change. Constitutionalism hinges upon a distinction between the procedures governing ordinary legislation and the more onerous procedural hurdles that must be overcome in order to recast the ground rules of political life. To understand the amending power and its limits, therefore, is to understand the balance of rigidity and flexibility, of permanence and adaptability, that lies at the heart of constitutional government. To institutionalize a constitutional system, as post-Communist drafters from Tirana to Tallinn are now attempting to do, means, among other things, to establish clear rules for, and restraints upon, future constitutional change. A seemingly simple, albeit important, practical question raised by all such attempts is what amending formula should be adopted by these particular countries during this particular phase of their dramatic economic, political, and social transformations. The amending power is not a legal technicality but may, in turn, color the political process as a whole. The answer that we propose and defend in this chapter can be stated succinctly: The procedure for constitutional modification best adapted to Eastern Europe today sets relatively lax conditions for amendment, keeps unamendable provisions to a minimal core of basic rights and institutions, and usually allows the process to be monopolized by parliament, without any obligatory recourse to popular referenda. This arrangement, or so we will argue, should make possible necessary but legally channeled readjustments to swiftly changing circumstances without undermining the already weak legitimacy of democratically accountable assemblies. We urge this approach with some ambivalence. Under better conditions, a sharp split between constitutional law and ordinary law would be preferable. But the peculiar conditions of Eastern Europe do not make this a sensible solution.

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  A Horizon Beyond Hatred? Introductory Reflections

  Robert L. Howse

  With the collapse of communist regimes throughout central and eastern Europe at the end of the 1980s, two competing interpretations of the post-cold war future gained prominence and influence in Anglo--American foreign policy circles. The first, propounded by Francis Fukuyama, sought to understand the collapse of communism as the universal triumph of capitalist liberal democracy. While acknowledging the possible resurgence of largely anachronistic conflicts of the past, including ethnic conflicts, as a short-term consequence of the end of communism, Fukuyama suggested that, once the dust had settled, liberal democracy would remain the only credible and viable social and political order in Europe. The alternative interpretation, that of John Mearsheimer, an adherent to the realist school of international relations, predicted a full-scale return to the instability of the past in the wake of the end of cold war bipolarity, including the inevitable resurgence of ethnic conflicts as potentially a major catalyst of instability and competition among the Western and, in particular, the European powers. Although these two views of the future appear diametrically opposed on the surface, I believe that either could justify the minimalist response of the Western powers to the breakup of Yugoslavia and the resultant civil war. In the Fukuyama view, the Yugoslav conflict was both inevitable and temporary, part of the transition to a new and permanent order of liberal democratic peace. Why sacrifice Western resources and lives to end a conflict that is a necessary growing pain for the new order? After all, Hegel, Fukuyama's model and guide, had described history (that is, historical progress) as a slaughter bench. In the realist view, national conflicts are inherent in the deep structure of international politics in the post-cold war era. These conflicts cannot be prevented or solved, but rather the major task is to prevent their escalation into unbounded and unstable competition between the major powers. This, for different reasons, suggested a minimalist response to the Yugoslav crisis, a response that would not require a hard choice between the differing traditional allegiances of the European powers in the Balkans (that is, Germany and Croatia, France and Serbia, Russia and Serbia) and would therefore prevent the Yugoslav crisis from escalating into a conflict among the major powers. Of course, an underlying assumption was that decisive intervention would require the intervening powers to choose sides. At the very least, the presence of Serbian enclaves in Croatia and Bosnia meant that there was no obviously legitimate territorial solution transcending traditional allegiances and interests of the major powers in the region that could serve as the goal of decisive intervention. Unless either of these main perspectives on the post-cold war world order have misunderstood the character of nationalism in the contemporary world, we are compelled, whatever our moral sensibilities and instincts, to view the Western response to the Yugoslav crisis as entirely reasonable. As for the sanctions against Serbia, UN intervention in the form of peacekeeping, negotiations, and so forth, these can best be seen as relatively low-cost, politically rational responses to uneducated public opinion, which demands that "something must be done." To decry the failure of these measures is to assume that Western statesmen or policy bureaucrats ever seriously believed that they would lead to a resolution of the war. In my view, the essays in this volume, all by scholars from the former Yugoslavia with a more or less liberal orientation, are of cardinal importance in reconsidering the various assumptions behind the predominant Western views of the post-cold war order and the place of ethnic conflict and ethnic nationalism in that order (or disorder). The essays offer no quick fixes and are remarkably free of simplistic criticisms of Western policy. Taken together, however, they certainly put into question, on the one hand, the inevitability of ethnic self-assertion degenerating into aggressive nationalism and, on the other hand, the assumption that nationalism is a kind of anachronism, a temporary phase or a product of the “Balkan temperament” rather than a dangerous, permanent ideological alternative to liberal democracy.

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  Another Rights Revolution? The Charter and the Reform of Social Regulation in Canada

  Robert L. Howse

  This chapter considers the impact of the Canadian Charter of Rights and Freedoms on social policy in Canada. The aim is neither to present a comprehensive theory of the Charter as it applies to social rights nor to examine in depth the fundamental philosophical issues involved in conceiving social programs in terms of rights or entitlements. Instead, the paper focuses critical attention on the Charter jurisprudence to date in relation to social rights, and speculates on the kind of impact that Charter-based social rights claims may have on the policy process, at a time when many social policies and programs are being reviewed and/or revamped. It should be emphasized that the Charter does not contain any explicit guarantees of social protection, such as the right to a job, a given level of income, or to food, housing, medical care or education (it will be recalled that the “Social Charter” debate during the recent round of constitutional negotiations concerned whether such rights should be formally added to the constitution). However, the broadly-worded Charter rights to life, liberty, and security of the person (s. 7) and to equality (s. 15) may encompass at least some social rights claims. If the lower courts have usually been reluctant to read into the Charter a discrete set of substantive social rights, the Supreme Court has unambiguously disapproved the view that social and economic legislation necessarily warrants judicial deference, and the Court has also indicated that, in certain cases, there may be valid constitutional claims to positive benefits from the state. Charter rights are not absolute. According to s. 1 of the Charter, these rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Thus, adjudication of a Charter claim involves two stages: first, the determination of whether there is a prima facie violation of a right, for which the burden of proof is on the complainant, and second, where such violation has been found, the consideration of whether it constitutes a “reasonable limit” under s. 1. Here, the burden of proof shifts to the state to provide a justification for the impugned measures. The criteria for justifying a measure as a “reasonable limit” were set out by the Supreme Court in the early Charter case of R. v. Oakes. They are: i) that the law have a “pressing and substantial purpose”; ii) that there is a rational connection or fit between this purpose and the legislative means adopted to achieve it; iii) that the means adopted is the least rights-restricting alternative that is available to achieve the purpose; iv) that there is a proportionality between the good attained by the measure and the extent to which rights have been restricted. The Supreme Court has sometimes been inconsistent in the degree of rigour with which it has applied these criteria. In some cases, where the courts have characterized the legislative measure in question as a balance of diverse social interests and particularly where the aim of the legislation is the protection of vulnerable groups (e.g., Sunday closing of commercial enterprises and restrictions on advertising aimed at children), a more relaxed approach to justification seems to have been adopted, with the government only being required to show the reasonableness of its policy choice as a balance of interests, including the interests of those whose rights have been infringed. However, in some—although certainly not all—recent cases, the Court has tended to reaffirm the rigorous approach of Oakes, even in the context of scrutinizing complex social and economic legislation. The provisions of s. 1 tend to give Charter litigation the character of a dialogue or conversation between courts and legislatures. Where there is an infringement of a Charter right, governments are invited to provide a principled policy justification for the infringement. Charter ruling are most likely to disrupt legislative outcomes where the government has been unable to make a compelling justification for its policy choices. Often this will be the case where policies and laws that violate rights have lost their justification because of changed social an economic conditions; where they are the product of interest group capture or of bureaucratic inertia and unresponsiveness; or where they reflect traditional values, assumptions, and prejudices that cannot withstand rational scrutiny.

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  Between Anarchy and the Rule of Law: Dispute Settlement and Related Implementation Issues in the Agreement on Internal Trade

  Robert L. Howse

  In this book, ten Canadian experts contribute essays ranging from a critical description of the agreement's salient features to an analysis of its novel dispute settlement mechanism. Together these essays provide an invaluable assessment of this new instrument of Canadian public policy.

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  Federalism, Democracy and Regulatory Reform: A Sceptical View of the Case for Decentralization

  Robert L. Howse

  In a wide range of recent policy literature, decentralization of political and economic power is advocated as a means to government that is more democratic, more efficient, and more sensitive to individual and community preferences. Often, federalism is viewed as the obvious instrument of such decentralization. Typically, what is implied is a prescription for greater devolution or delegation of powers in states that are already federal, or the creation of new federal structures in the case of unitary states. Much of the new-found enthusiasm for federalism as an instrument of decentralization has emerged in the context of policy debates about reform of the mature regulatory and social welfare state in advanced industrial democracies such as the United States and Canada, which are characterized by longstanding federal arrangements. Today, however, the case for federalism as an instrument of decentralization is often made in vastly different social and political contexts, whether the project is structural economic reform in developing countries or the transition to market economics and liberal democratic politics in the former communist countries of Central and East Europe, where (not surprisingly) the legacy of state centralism has led to intense interest in the devolution of political and economic power. This essay takes a critical look at this new-found enthusiasm for federalism as a solution to the supposed failings of central governments. I intend to develop three lines of argument. First, it is far from clear that in mature federal states such as Canada and the United States further devolution or delegation of power to federal sub-units is likely to result in more democratic, more liberal, or more efficient government. Second, many of the arguments for decentralization upon which the case for devolution of powers is based would more logically imply a transfer of power not to lower levels of government but to non-governmental actors, whether through privatization or contracting of delivery of services to community or non-profit organizations, or the use of incentive-based as opposed to centralized command-and control-type policy instruments. Third, in the context of many developing countries and Newly Liberalizing Countries in Central and Eastern Europe, there may be particular costs and obstacles to decentralization through federalism which have been often neglected by advocates of federalism as a general policy prescription. None of these three lines of argument is intrinsically opposed to federalism. Rather, my aim is to challenge the dogmatic bias towards decentralization through federalism which characterizes much contemporary discussion about policy reform, and to point those who are seriously preoccupied with questions of policy reform, whether in North American or other contexts, towards scholarship on federalism that examines the costs as well as the benefits of decentralization, and which takes a subtle and contextualized approach to the allocation of powers and the design of federal structures.

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  Rewarding Whistleblowers: The Costs and Benefits of an Incentive-Based Compliance Strategy

  Robert L. Howse and Ronald J. Daniels

  Canadians today are very much concerned about corporate crime and about corporations that do not comply with regulatory requirements, especially those related to the environment, securities law and occupational health and safety regulations. This increased concern has led to proposals to extend liability for illegal corporate conduct (by making directors personally liable for the actions of their companies, for example); it has also led to arguments in favour of greatly increasing the sanctions on corporations (and individual wrongdoers within those corporations) for wrongful conduct. The recent academic literature reflects a lively debate as to the effectiveness of such proposals in reducing illegal behavior in corporations and their consequences for the functioning of the corporation as an economic institution. With some notable exceptions, the focus of the debate on sanctions and liability rules has resulted in the relative neglect of an essential ingredient in effective deterrence; the capacity to monitor and detect wrongdoing within the corporation. The lack of attention to the potential for increased compliance through improved monitoring and detection is surprising for several reasons. First, as Jennifer Arlen notes, “[m]any corporate crimes—such as securities fraud, government procurement fraud, and some environmental crimes—cannot be readily detected by government”. Second, there is a significant body of literature on regulatory reform that relates to the effectiveness of many traditional “command and control” forms of regulations to the costs and difficulties which are inherent in government monitoring and detection of wrongdoing. Third, one of the most generally held tenets of contemporary criminology is that increasing the likelihood of detection and prosecution tends to be a more effective means of strengthening deterrence than making sanctions more severe. In other words, it is better to put another cop on the beat than to build more jail cells. This study is intended to help redress the inadequate emphasis on monitoring and detection in the current debate on corporate criminal and regulatory responsibility. Accepting the proposition that direct monitoring of corporate conduct by government as a means of detection is unlikely to be cost-effective, our concern is to identify agents within the corporation who can be enlisted in the cause of monitoring and detection, and to consider how public policies can provide stronger incentives, and make it easier, for these agents to identify and disclose wrongdoing within the corporation. In conducting this analysis, we begin by considering one such policy that has generated sustained public attention and controversy over the last decade: so-called “whistleblower protection.” Recognizing that agents within corporations (and government institutions) risk retaliation in the form of dismissal if they disclose corporate wrongdoing, many jurisdictions in North America have adopted legislation to protect employee whistleblowers, either by providing them with a private right of action when dismissed in retaliation for whistleblowing or through outright prohibition of dismissal or other disciplinary measures motivated by retaliation. It is not, however, these modest protective provisions that have captivated the public imagination, nor have these provisions contributed significantly to the disclosures of spectacular corporate frauds. Rather, it is the offer (or prospect) of substantial reward or bounties to whistleblowers, most notably under the False Claims Act, a federal U.S. stature (as amended in 1986), that has produced this result. Under the provisions of this statutes, an individual who discovers wrongdoing that has injured the U.S. federal government (fraud in defence procurement, for example) may launch a private lawsuit against the corporate wrongdoer. The government has the option to join the action or not, but the individual may nevertheless proceed even if the government declines to do so. If successful, the whistleblower may recover a bounty calculated to be between 25 percent and 30 percent of the total penalties or other damages assessed against the wrongdoer. In cases where the Justice Department joins the action, the minimum recovery is reduced to 15 percent. If unsuccessful, the whistleblower is responsible for her own legal costs but is not responsible for the legal costs of the defendant except where the court is convinced that the action is vexatious. The most spectacular whistleblower suits have centred on multi-million dollar frauds, particularly in the areas of defense and health-care procurement and have usually resulted in convictions. In these instances, whistleblowers have often received what appear to be very large payoffs, which, in effect, reflect the size of the scan uncovered and the enormous savings to government. Despite the arguable savings to the public from this type of action, under the False Claims Act the practice of providing bounties to whistleblowers has been controversial. First, there is the argument that much of the information divulged through actions under the False Claims Act would have been divulged even if much smaller bounties had been offered. Second, corporations are vulnerable to false claims made by opportunistic whistleblowers who may be motivated to force corporations into financial settlements in order to avoid the adverse reputational and related effects caused by highly public, albeit ill-founded, accusations. Third, it is sometimes argued that reward for external whistleblowing frustrate efforts at internal compliance, or act as disincentives to “internal” whistleblowing. For instance, an employee may be dissuaded from reporting a misconduct in a timely fashion within the corporation because of the prospect of receiving a large reward by disclosing corporate wrongdoing through litigation, thereby undermining internal efforts as corporate compliance (the importance of which is often stressed in a wide range of the relevant policy and legal literature). Fourth, it is often suggested that the calibration of the amount of the reward from whistleblowing directly to the amount of the penalty (and thereby to the degree of seriousness and extent of the wrongdoing) provides whistleblowers with an incentive to report wrongdoing later rather than earlier, and to do so only after the corruption has produced much more serious consequences, rather than disclosing evidence of corruption in the corporation immediately. Finally, some analysts worry that the practice of rewarding whistleblowing may have deleterious effects on trust and team spirit within corporations, ingredients seen by many as critical to the success of corporations as economic institutions. As is evident from the variety of pejorative colloquial expressions for whistleblowing (ratting, squealing, tattling, etc.), reporting co-workers, associates or superiors to the authorities often has negative moral connotations. These connotations have been powerfully reinforced in our time by the frequent use of “informers” by totalitarian regimes, both left and right, a practice often closely identified with the repellant nature of those regimes. This study draws primarily on analytical techniques and empirical studies from the literature of the law, economics and organizational behaviour. Since understanding the effects of rewarding whistleblowers depends on an understanding of their motivations and the effects of their actions on the essential ethical life of the corporation (as a human association), it is our hope that this study will also contribute to the more subtle and informed debate over the morality of whistleblowing.

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  Too Much Lawyering, Too Little Law

  Samuel Issacharoff

  Sometimes it appears, Tolstoy to the contrary, that unhappy families are indeed alike. From the vantage point of an American academic lawyer, what is most striking in first reading the admirable Report produced by Lord Woolf is its uncanny familiarity. Despite contact with the British civil justice system that is best described as episodic and anecdotal, I am nonetheless struck by the ready comprehensibility of the Report's depiction of the malaise of a common law system afflicted by an escalation of legal costs and a growing sense that justice is inaccessible to the bulk of the population. There is nothing foreign or remote in the idea of a legal system administered by an overburdened and understaffed judiciary, nor by the inability of law to provide security and redress in those daily affairs that Hobbes described as giving the essential incentives to industry in civilized societies. No better case for reform can be made than the statistical evidence of the wholly unacceptable level of costs that currently afflict the system. According to a sample of cases from the Supreme Court Taxing Office, the average costs allowed in cases worth £12,500 or less were £12,044. Assuming a comparable level of expenditures on the losing side in these cases, then the transaction costs associated with the legal system exceed the merits of the dispute by a factor of two to one. This absolutely extraordinary level of expenditures means that the legal system is simply too expensive, too inefficient, and too sclerotic to provide a meaningful forum for dispute resolution in the commonplace social interactions that fall within the confines of tort, contract and property. The greatest strength of the Woolf Report is its candid willingness to confront a legal system that by its generous insistence on providing the fullest protection of the law to all disputes, effectively denies any legal recourse to large numbers of disputants. The picture of the legal system that emerges from the Report is one that produces too much lawyering in the relatively few litigated disputes, and too little law in the resolution of the everyday conflicts of life. In echoing Lord Devlin, the Report stresses the need to discipline the legal system, to recognize that indeed ‘half a loaf is better than no bread.’ This, in turn, requires mechanisms for calibrating the level of justice available to disputants according to the stakes in the controversy. What emerges is an attempt to recast the legal system as less global, less party-controlled, less of a free market-in short, as managed justice. The impetus for managerial judging bridges the shores of the Atlantic. Since the adoption of the Federal Rules of Civil Procedure in 1938, and intensifying since 1983, as chronicled more fully by Professor Richard Marcus, American federal civil procedure has undergone a series of reforms aimed at increasing the power of judges to manage litigation. Some highlights include having scheduled pretrial and discovery conferences, together with increased judicial power to sanction wayward attorney conduct, increased use of summary judgment powers, increased capacity to experiment with streamlined discovery procedures, increased use of court-annexed alternative dispute resolution procedures, and the increased capacity of local courts to create local rules of procedure to deal with particular case specific problems. While these reforms are specific to the American legal culture, and particularly to the nettlesome role of the jury in civil cases as the ultimate trier of fact, the overall objectives are congruent to those found in the Woolf Report. The Report's conception of managerial judging rests on a tripartite foundation. The first is the use of managerial prerogatives to channel litigation in such a way as to streamline the process and reduce aggregate costs. The second is to increase the resources of the judiciary to play this more interventionist role. The third is to reform some of the rules of procedure to facilitate more economical administration of civil justice. As a general matter, I found the report more successful in the first two matters, and weaker in the scope of its conception of procedural reform. This weakness becomes clear when one considers the effect that procedure has on strategic considerations at almost every point in a legal dispute. The Report itself provides a strong example of how procedural changes can sometimes have unintended, negative effects in the case of the English experience with witness statements. When modifying or changing procedure, there must be thought to how those changes will effect areas such as discovery, offers to settle and summary judgments. While there is little that an outsider can contribute to the discussion of resource allocation within the court system, other than to note the obvious need for law clerks and researchers if the more interventionist goals for the judiciary are to be carried out, there is quite a bit that can be said about judging and procedure, even by a foreign observer. It is to these matters that I now turn.

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  Private Versus Public Lending: Evidence From Covenants

  Marcel Kahan and Bruce Tuckman

  Surveys the current climate of changing interest rates, volatile credit quality, and the fixed income market, covering critical developments in markets, valuation, and the legal and regulatory environment. Looks at innovation and growth in major market sectors and new techniques of securities valuation, explaining mortgage-backed securities, corporate bonds, junk bonds, and structured notes, and discusses recent tax development affecting fixed income derivative securities and structured finance transactions.

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  “Indigenous Peoples” as an International Legal Concept

  Benedict Kingsbury

  The fact that indigenous peoples has become an appealing term which many groups (or individuals speaking for them) choose to apply to themselves is largely a result of the currency given to the category by the international activities of nonstate and interstate organizations. The purpose of this paper is to examine definitional aspects of the use of “indigenous peoples” and related categories in contemporary international legal and institutional practice. It addresses the international-law aspects of a subject that recurs throughout this volume, that of the meaning of indigenous peoples. As the discussion of international practice will indicate, the term has two rather different functions in international legal materials. One function is to delimit the precise scope of international instruments, especially when an instrument proclaims rights of indigenous peoples or duties of states in relation to indigenous peoples. A second function is to indicate in broad terms the groups with whom a general and diffuse body of practice (such as that of the United Nations Working Group on Indigenous Populations when it engages annually in a “review of developments”) is principally concerned. The paper is organized as follows. The first section, by way of orientation, briefly outlines international activity concerning indigenous peoples. Subsequent sections examine the classifications used by the major international institutions concerned with such groups and consider the problems of definition faced by the UN Working Group in preparing a draft Declaration on the Rights of Indigenous Peoples. Based on international practice, a list of essential requirements and other indicia will be suggested. The conclusion summarizes the findings of the paper, and makes the point that much of the international law bearing upon claims by indigenous peoples does not depend directly on use of the category “indigenous peoples.”

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  De Minimis Settlements Under Superfund: An Empirical Study

  Lewis A. Kornhauser and Richard L. Revesz

  This chapter reports the results of an empirical study of de minimis settlements entered on or before June 30, 1992. We analyzed the settlement documents and other site-specific information for virtually all of the de minimis settlements entered through June 30, 1992, as well as various databases prepared by the U.S. Environmental Protection Agency (EPA) that contain information about sites on the National Priorities List (NPL). We also interviewed the attorneys charged with primary responsibility for de minimis settlements at each of the EPA regional offices, as well as selected representative of potentially responsible parties (PRPs) in Superfund actions, both de minimis and non-de minimis. We focus on three principal questions: How many de minimis settlements were entered, as a percentage of the universe of sites for which such settlements would be appropriate? When, during the long process of cleanup, were settlements entered? What variations were there in the terms of the settlements? Unfortunately, our conclusions are far from encourage. EPA has vastly underutilized de minimis settlements, using this tool in only about one-fifth of the sites likely to benefit from such settlements. Even in those instances, it has settled late in the cleanup process, after many years of legal wrangling have greatly reduced the benefits of settlement. It has also failed to follow its own policy of standardizing the form of the settlements, thus creating incentives for costly negotiations over the terms of the de minimis settlements and for conflict between de minimis and non-de minimis defendants. Moreover, the variations in settlement practices cannot be explained on the basis that the de minimis program is administered in a decentralized fashion by the EPA regions (the agency has ten regional offices with geographic jurisdiction); there are substantial variations even within single regions. The questions addressed in this chapter are important to an evaluation of the merits of the Superfund liability scheme, which has been criticized for the high transaction costs that it imposed on the affected parties. This criticism is most apt in the case of parties that bear a small share of the liability at a site. RAND recently studied transaction-cost shares (the ratio of a firm’s transaction costs to the sum of its transaction costs and remediation costs) for various types of PRPs. If found that a firm’s transaction-cost share increases significantly as its volumetric share at a site falls (Dixon, Drezner, and Hammitt 1993, 35-37). Thus, de minimis parties bear a disproportionate amount of transaction costs. This problem could be alleviated considerably by a well-functioning de minimis settlement program. Unfortunately, our study establishes that the program has been seriously underutilized and mismanaged.

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  Evaluating the Effects of Alternative Superfund Liability Rules

  Lewis A. Kornhauser and Richard L. Revesz

  One of the central issues in the Superfund reauthorization debate concerns the fate of joint-and-several liability. The 1980 Superfund statute did not specify whether potentially responsible parties (PRPs) would face joint-and-several liability rather than nonjoint (several only) liability. In the face of this legislative silence, the courts followed the approach of the Restatement (Second) of Torts and have imposed joint-and-several liability for indivisible harm – harm for which there is not a reasonable basis of apportionment. The Superfund Amendments and Reauthorization Act of 1986 (SARA) implicitly ratified the imposition of joint-and-several liability, at least in some circumstances, by establishing a right to contribution; such a right would not arise in the absence of joint-and-several liability. In the reauthorization debate, two groups recently have urged various curtailments in the use of joint-and-several liability. The National Commission on Superfund, comprised of twenty-six leaders from the various Superfund constituencies, did so in its final consensus report (National Commission on Superfund 1994). The Clinton administration likewise urged such curtailments in its bill submitted to the 103rd Congress in February 1994 (H.R. 3800). The commission recommended a scheme under which PRPs would generally be responsible only for their own share of the costs and would typically not have to bear responsibility for any orphan shares of insolvent or unidentifiable PRPs, if they accepted a determination of their share performed by a neutral third party. Orphan shares would be funded by an increased tax and would be charged to the PRP’s participating in the allocation process only if the proceeds of the tax were insufficient. Joint-and-several liability would be retained for parties that did not comply with the requirements of the allocation process (National Commission on Superfund 1994, 14-21). Under the Clinton administration’s Superfund bill, PRPs that accept a neutral determination of their share of the liability would not be responsible for amounts attributable to insolvent PRPs, but they would have to pay their share of amounts attributable to unidentifiable PRPs. Even under the current Superfund statutes, the courts have disagreed somewhat about what it means for a harm to be indivisible, thereby triggering joint-and-several liability. This chapter seeks to inform the reauthorization debate by comparing the effects of joint-and-several liability to those of nonjoint liability on the basis of three criteria: deterrence, settlement-inducing properties, and fairness. Our major conclusion is that, with respect to each of these criteria, neither rule dominates the other. Our discussion on this chapter focuses on a simple situation: a single plaintiff, whether the U.S. Environmental Protection Agency (EPA) or a state, seeks to recover cleanup costs from two defendants; we therefore do not focus on many of the real-world complications posed by Superfund. We proceed in this fashion because it is important to understand the basic questions raised by joint-and-several liability before dealing with additional complications. The major insights of this chapter are applicable to more complex situations as well.

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  Moral Epistemology

  Thomas Nagel

  If our interest is the public evaluation and control of advances in biomedicine or other technologies, the problem of moral knowledge has to be closely connected with the conditions of political legitimacy. The issue is not just, “What are the grounds and methods of moral thought in general?” but “What methods can be used to justify conclusions that are fit to serve as the basis for public policy and public restraint?” There may be grounds of moral belief which can serve legitimately as a basis for personal conduct, but which it would be inappropriate to rely on in justifying the actions of official bodies, taken in the name of a public which comprises a wide range of conviction. I shall return to this point later. But for most of this discussion I won't distinguish between the morality of public and of private choice, but will talk about the foundations of moral judgment in general. Because of the essentially public concerns which prompt the discussion, however, I shall leave aside the morality of individual virtue, which may have some bearing on the conduct of particular public officials but has little to do with technology assessment. Epistemology, or the theory of knowledge, is a function of the subject matter. How to arrive at conclusions, how to justify or criticize them, and the pitfalls along the way, all depend on what kind of thing you are trying to make up your mind about. So the first question to answer is: What is morality about—what kind of thing is a moral belief? What is it, in other words, that moral epistemology must investigate our knowledge of? The minimal answer has two elements: (1) Moral conclusions are practical, which means that they are about what to do rather than about what is the case (even though they may be based partly on what is the case); (2) they are not merely individual but represent a possible area of interpersonal agreement. The most general concept of morality, shared by those who may differ widely about its substantive content or foundation, refers to standards of individual or collective conduct which permit people to agree in the determination of what ought to be done in a given case or under given circumstances.

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  The Superfund Debate

  Richard L. Revesz and Richard B. Stewart

  During the last decade, the Superfund approach to environmental liability and remediation has become highly controversial. The costs of remedying the environmental problems caused by hazardous substances are great, although Superfund is far from the most costly U.S. environmental program. Its annual costs are in the range of $3 to $5 billion—a fraction of the costs of the federal air or water pollution regulation programs. Much of the controversy generated by Superfund stems from is far-reaching statutory system of liabilities, which goes far beyond that of the common law. Liability is strict; no showing of fault of negligence on the part of a defendant is required. Liability is retroactive, in the sense that deposits of waste that occurred before Superfund’s enactment can form the basis for liability for remedial costs incurred after its enactment. Liability is also joint and several; unless a defendant can show that the risk or harm attributable to it is “divisible,” each of the defendants in some way responsible for the wastes at a site can be potentially singled out to bear all of the cleanup costs. The broad net of Superfund liability included current and past owners and operators of waste sites and waste generators and transporters. Defendants at Superfund sites include not only large industrial firms, but also a broad array of other entities – municipalities, local dry cleaners, hospitals, and a myriad of small businesses. As a result of this expansive liability regime, Superfund also has had significant effects on the real estate, banking, and insurance industries, as well as on the legal profession. Defendants have criticized the cleanup levels demanded by the U.S. Environmental Protection Agency (EPA) as excessively stringent and costly. Superfund is also widely regarded as a wasteful and inefficient program, plagued by high transaction costs, serious administrative deficiencies, and long delays in cleaning up sites. After a contentious debate, the 103rd Congress failed to reauthorize Superfund in 1994. The debate will be renewed in the 104th Congress; in light of the changed political composition of the new Congress, significant amendments may well be adopted. Critics of the current system have urged major changes. The most far-reaching could replace the current system of liability with a tax-funded public works program. Many environmental groups, however, strongly defend the basic features of the Superfund program as essential to fund the cleanup of past hazardous waste problems and to provide strong incentives to prevent them from recurring in the future. Legislative changes to the current program are likely to focus on moderating required cleanup levels, reducing the scope of liability, limiting retroactivity, and creating an expanded cleanup fund financed by insurers. The purpose of this book, based on the papers presented at the Conference on Superfund Reauthorization: Theoretical and Empirical Issues, which took place at the New York University School of Law on December 3-4, 1993, is to provide a serious look at the issues most relevant to the reauthorization debate and the future of the program. To aid the reader to this end, we introduce in this chapter the relevant components of Superfund statute itself, including the liability and taxing regimes, the impact of the liability regime on various sectors of the U.S. economy, the site cleanup process, and the determination of cleanup standards. We then summarize the conference papers (now the chapters in this book) and their links to the ongoing public policy debate. The issues addressed are basic to understanding Superfund and will continue to be relevant long after reauthorization. Although the issues are related, each chapter is self-sufficient. Readers interested in particular issues can accordingly limit their attention to the pertinent chapters.