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  California Fiscal Federalism: A School Finance Perspective

  Daniel L. Rubinfeld

  California’s system of public finance has undergone a radical change over the past 20 years. This change was brought about by the actions of a wide group of interested political actors – by citizens, through the initiative process; by the legislature, through the passage of a variety of fiscal measures; by the executive, through the administration of a California finance system that became more centralized over time; and by the judiciary, through decisions that have substantially restricted the funding options available to local school districts. This paper provides a critical review of the important actions that have altered California’s fiscal federalist system. I begin with a brief review of the constitutional limits that existed in California’s federalist system prior to the 1970s. Next, I focus on California school finance; schooling is not on y the most important budgetary item for California governments, it has also been affected fundamentally by both the initiative process and the judiciary. The following section extends the discussion beyond school finance to the general fiscal budget. Finally, I comment on the implications of the analysis for California Constitutional federalism.

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  The Gender Question in Criminal Law

  Stephen J. Schulhofer

  This edition updates the most successful anthology on punishment. It includes leading articles representing major positions on the philosophy of punishment, dealing with subjects such as rehabilitation and capital punishment, victims rights, feminism, race, and poverty.

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  Liability for Natural Resource Injury: Beyond Tort

  Richard B. Stewart

  Recent debate about environmental regulation and liability reveals a remarkable reversal of positions. Business traditionally has insisted that environmental law and policy be driven by economic analysis of the costs and benefits of environmental regulation and liability rules. Most environmental advocates and many government regulators have voiced strong opposition, asserting that a healthy and unspoiled environment is beyond price. Recently, however, federal and state government agencies, with strong backing from environmental groups, have aggressively and successfully sought to impose statutory damage liability for injuries to public natural resources. In doing so, they have sought to base damage claims on contingent valuation methodology (CVM) surveys that seek to measure the economic nonuse value that individuals place on the environment by asking them how much they would page to preserve a given natural resource from injury. Business, on the other hand, has attacked use of this new methodology as unreliable and unsound. This novel debate over the role of economic methodology in environmental protection has been generated by recent statutes authorizing natural resource damage liability. In the 1980 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Congress authorized federal, state, and tribal trustee authorities to bring court actions to recover damages for injury caused by releases of hazardous substances to natural resources “belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by” the trustees [CERCLA §§ 101(16), 107(a)(4)(C)]. Trustees may also recover the costs that they have incurred in assessing these natural resource damages (NRD). The Clean Water Act (CWA) and the 1990 Oil Pollution Act (OPA) provide similar NRD liability for injuries caused by oil spills [CWA §311(f)(4), (5); OPA §1002(a), (b)(2)]. Recoveries must be spent to restore, replace, or acquire the equivalent of the injured resource; federal trustees are authorized to make such expenditures without further authorization or appropriation by Congress. These statutes impose NRD liability above and beyond the costs of removing the pollution in question. Many states have enacted similar statutes, authorizing state officials to bring actions for natural resource damage. To date, the most significant natural resource damage case is the $900 million settlement of NRD claims, pursuant to the Clean Water Act, by the United States and Alaska against Exxon for the Exxon Valdez spill in Prince William Sound. Government NRD recoveries in the tens of millions of dollars have also been obtained for hazardous releases or oil sills at other sites. The federal government alone has obtained NRD recoveries in respect of nearly fifty sites. Many additional claims are pending. Natural resource damage liability is becoming an important and widely used tool in government’s armory of environmental remedies.

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  Legislators' Intentions and Unintentional Legislation

  Jeremy Waldron

  Interest in interpretation has emerged in recent years as one of the main intellectual paradigms of legal scholarship. This collection of new essays in law and interpretation provides the reader with an overview of this important topic, written by some of the most distinguished scholars in the field. The book begins with interpretation as a general method of legal theorizing, and thus provides critical assessment of the recent “interpretative turn” in jurisprudence. Further chapters include essays on the nature of interpretation, its objectivity, the possible determinacy of legal standards, and their nature. Concluding with a series of articles on the role of legislative intent in the interpretation of statutes, this work offers new and refreshing insights into this old controversy.

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  Moments of Carelessness and Massive Loss

  Jeremy Waldron

  The objection that it is inappropriate to assess the institution of tort liability in terms of a desert-based criterion of fairness would be more convincing if the institution were in better shape overall, so far as other modes of justification were concerned. This chapter considers whether tort liability can be defended on grounds of fairness, even if it cannot be defended on other grounds. It focuses on the assumption that the system of tort liability, whose impact on individual injurers is ameliorated by third-party insurance contracts, is in itself fundamentally just. There are important differences between tort liability and liability in the criminal law. The aim of compensating victims is at best secondary or incidental in criminal law, whereas it is central in torts. This theory also examines carelessness and the annulment theory, as well as wrongful loss and wrongful gain.

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  Money and Complex Equality

  Jeremy Waldron

  Jeremy Waldron argues that Michael Walzer's theory of justice mischaracterizes money's influence on social meanings. Waldron argues that the correct conception of money reveals that Walzer is mistaken in categorizing various social goods primarily in terms of their exchangeability or non‐exchangeability for money. Waldron offers an alternative explanation of why some monetary transactions are wrong. He argues that meanings of goods should be questioned and re‐examined.

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  What Plato Would Allow

  Jeremy Waldron

  With 16 original essays all published here for the first time, Theory and Practice focuses on the relationship between philosophical tradition and everyday life in the Western tradition. In this comprehensive volume, Ian Shapiro and Judith Wagner DeCew have gathered contributions from some of the most influential thinkers of our generation including Cass Sunnstein, Jean Bethke Elshtain, Martha Nussbaum, Jeremy Waldron, and Kent Greenwalt. What are the relations between philosophical theories and everyday life? This question, as old as it is profound, is the central focus of Theory and Practice. The contributors include some of the most influential thinkers of our generation, among them Cass Sunnstein, Jean Bethke Elshtain, Martha Nessbaum, Jeremy Waldron, and Kent Greenwalt. In sixteen chapters—all published here for the first time—the authors examine major attempts to reconcile theory with practice in the Western tradition from Herodotus, Plato, and Aristotle to Kant and Heidegger. Considerable attention is devoted to the role of theory in judicial decision-making, debates between defenders of the value of pure theory and those who argue for the priority of practice, the political implications of theory, practical problems such as global warming, and the theoretical commitments of practitioners from Karl Marx to Vaclav Havel. One of the most expansive volumes in the NOMOS series to date, Theory and Practice will be of interest to philosophers, lawyers, and social scientists from a wide range of disciplines.

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  Legal Issues

  José E. Alvarez

  An annual publication of the United Nations Association of the United States of America.

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  Free Speech and the Aims of the University: Some Modest Proposals

  Kwame Anthony Appiah

  This book considers the ethical basis of fundamental university policies with special emphasis on how issues of community and diversity influence education. The authors raise four central questions in this volume: > What should the aims of universities be, given their changed demography? > How should university curricula reflect multicultural society? > Does the new environment require special treatment of campus speech? > What role should affirmative action play in promoting diversity or community in the academy?

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  Identity, Authenticity, Survival: Multicultural Societies and Social Reproduction

  Kwame Anthony Appiah

  A new edition of the highly acclaimed book Multiculturalism and “The Politics of Recognition,” this paperback brings together an even wider range of leading philosophers and social scientists to probe the political controversy surrounding multiculturalism. Charles Taylor’s initial inquiry, which considers whether the institutions of liberal democratic government make room—or should make room—for recognizing the worth of distinctive cultural traditions, remains the centerpiece of this discussion. It is now joined by Jürgen Habermas’s extensive essay on the issues of recognition and the democratic constitutional state and by K. Anthony Appiah’s commentary on the tensions between personal and collective identities, such as those shaped by religion, gender, ethnicity, race, and sexuality, and on the dangerous tendency of multicultural politics to gloss over such tensions. These contributions are joined by those of other well-known thinkers, who further relate the demand for recognition to issues of multicultural education, feminism, and cultural separatism.

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  Myth, Literature and the African World

  Kwame Anthony Appiah

  Conceived as a "fitting tribute" to the Nigerian writer on his 60th birthday, this collection is an effort to engage with Soyinka and his work at the critical level his achievement requires. The contributors, distinguished writers themselves, approach their task with eloquent analysis and thoughtful criticism.

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  Preface

  Kwame Anthony Appiah

  Presents the basic texts of Ethiopian philosophy, each preceded by a specific introduction. Also includes a general introduction which emphasizes the place held by philosophy in Ethiopia from the fifth to eighteenth century. This introduction also determines the philosophical contribution of Ethiopia in relation to the thought of traditional wisdom throughout the African continent.

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  Intracircuit Nonacquiescence and the Breakdown of the Rule of Law: A Response to Estreicher and Revesz

  Matthew Diller and Nancy Morawetz

  Over the past decade, administrative agency nonacquiescence – the refusal of an administrative agency to apply the law of the reviewing court – has been roundly condemned by the courts. In requiring agencies to comply with circuit precedent, the courts have drawn a sharp line between authority of the government to pursue litigation in circuits that have not yet ruled on an issue and its obligation to accept the settled law of circuits that have ruled against the government. * * * In their recent article, Nonacquiescence by Federal Administrative Agencies, Professors Samuel Estreicher and Richard Revesz argue that nonacquiescence within a circuit is clearly settled. They argue that nonacquisescence in a circuit’s case law is permissible so long at the agency is reasonably seeking to vindicate its position in the courts and is forwarding a position that is not “so bereft of support in available legal materials that it is unlikely to be accepted by any other court of appeals.” * * * * * * This Comment critiques Estreicher and Revesz’ underlying assumption about our legal system and their proposed standard for permissible nonacquiescence. We argue that their proposal upsets the balance between agencies and courts by rendering the judiciary essentially powerless to enforce congressional limitations on agency for long periods of time. * * *

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  Politics, Interpretation, and the Rule of Law

  William N. Eskridge Jr. and John A. Ferejohn

  We may say that a legal system satisfies the requirements of the rule of law if its commands are general, knowable, and performable. Generality is the requirement that the content of law not depend on particulars such as the identities of the subjects; it is sometimes said to require that that law be rulelike (even if it is not explicitly expressed as a system of rules). Knowability requires that law be publicly promulgated and that changes in it be prospective in their effect. Performability is the requirement that individuals could act in ways that satisfy its commands—particularly, that it not be contradictory or violate physical or other constraints on action. While no actual legal system could fully satisfy all these demands—indeed, generality seems transparently to conflict with knowability—we hold the rule of law as a normative standard with which to evaluate the regulation of our public life. Its virtues are rooted in elemental requirements of justice (a source of all three requirements) and efficiency (by allowing individuals and public bodies to rely on the anticipated operation of the legal system when making allocative choices among alternative courses of action).

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  Labor Law Reform in a World of Competitive Product Markets

  Samuel Estreicher

  U.S. private sector unionism is in decline. From a high watermark in 1953 of around 35.7% of the private nonagricultural workforce, union membership has fallen to 11.5% and unions represent under 13% of private sector workers.' Absent reform of the labor relations system, the trend is clear. Unions will remain a significant force in government employment, big-city commercial construction, rail and air transportation, and certain shrinking mining and manufacturing industries. Aside from these pockets of unionism, however, workplace-based representation of the interests of working people will become a distinctly marginal phenomenon in our society. The falling fortunes of the organized labor movement do not, standing alone, establish a case for reform of existing arrangements. However, whatever our views of unions, collective bargaining, strikes, and the like, the prospect of a virtual disappearance in private firms of mechanisms for employees to have a say in the terms and conditions of their employment should be a cause for public concern. With a new labor-friendly administration in Washington, and the appointment of the Commission on the Future of Worker-Management Relations (chaired by former U.S. Secretary of Labor John T. Dunlop), a window of opportunity has opened to revisit basic ground rules. Such openings are rare in our political history and should not be squandered. In shaping the reform agenda, we need to squarely confront the underlying causes of labor's decline.

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  Three Cheers for Antitrust

  Harry First

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  British Criminology Before 1935

  David W. Garland

  “Criminology”, as a professional academic discipline, did not exist in Britain before 1935, and was established only gradually and precariously thereafter. So whatever this essay is about, it cannot be about criminology in quite the sense we think of it today. Instead, it examines some of the lines of emergence of that discipline, and in particular, the theoretical and institutional processes which gave rise to a scientific criminology in Britain. Given the short space available to me here, this can be no more than a very selective account, highlighting a few important currents, while ignoring much that would be essential to a proper genealogy of the subject. My central concern will be to show that the development of British criminology can best be understood by concentrating less upon the spread of ideas from abroad and more upon the ways in which penal and social institutions acted as a practical surface of emergence for this kind of knowledge. What is presented is not an abstracted history of ideas, but instead an attempt to situate criminology within the institutional practices and power relations which have formed its immediate context and foundation. It should be possible, in turn, to situate this history of institutional pragmatics within a wider field of social forces [ . . .] but no such analysis is attempted here. By convention, modem 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 co 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 co 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 categorisation. To some extent this was effectively the rediscription 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.

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  Of Crimes and Criminals: The Development of Criminology in Britain

  David W. Garland

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

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  The Criminal and His Science

  David W. Garland

  The last decades of the nineteenth century witnessed the formation of a new form of knowledge which has become familiar to us as the “science of criminology”. Within a remarkably brief period, perhaps no more than 20 years after the appearance of Lombroso's L'Uomo Delinquente in 1876, this knowledge developed from the idiosyncratic concerns of a few individuals into a programme of investigation and social action which attracted support throughout the whole of Europe and North America. This explosion of interest in the criminological enterprise led to the publication of hundreds of texts, the formation of dozens of national and international congresses, conferences and associations, and the assembly of an international social movement which pressed the claims of criminology upon the legislatures and penal institutions of virtually every western nation. The widespread success of that movement in establishing criminology as an accredited discipline in the institutions of government, penology and education means that a detailed description of that programme might today appear to be unnecessary. The character and concerns of this knowledge are well known. Its premises and implications have been frequently discussed, either with approval or, more recently, with some dismay. Its concepts and recommended practices, for better or for worse, underpin many of the penal sanctions and institutions of nations throughout the modern world. But for all that it is a familiar and established discipline in today's world, it would seem that its history and development have escaped the close and critical scrutiny usually afforded to powerful forms of social knowledge. There has yet to be produced an intensive history of the discipline, either in terms of its internal development or else its social effects, despite the beginnings made in this direction by Jeffrey (1960), Radzinowicz (1966), Cohen (1974) and Matza (1964). This failure of criminologists to reflect critically upon their own practice has meant that our knowledge of criminology's development is sparse and inadequate. We are left with, on the one hand, hagiographies of the “founding fathers” and their “scientific mission” and, on the other, wholesale dismissals of the “reactionary purpose” and legacy of “positivism” with all the simplifications and over statements which these entail. What is missing is any detailed account of the theoretical formation of the criminological programme, its internal characteristics and its relationship to its social conditions of emergence. The following account does not claim to make good this absence. But it does attempt to take these issues seriously and to deal with the evidence of concrete texts, statements and events. In particular, it examines the theoretical framework of criminology, asking how this structure of problems, propositions and concepts came to be assembled, and how it related to the events and institutions of the social world. It is hoped that such an account can begin to explain the peculiar lines of development subsequently taken by the discipline, as well as indicating the basis of its affinity to the institutions of power which were later to embrace it in their practices and ideologies. I have termed this a “critical” account—as opposed, perhaps, to an “impartial” one—and I should say at the outset what is meant by this and what its limitations are. In the pages that follow there is little space given to the progressive features of positivist criminology. These features are well enough known since they are inscribed in the prefaces and pages of virtually every positivist text, but, lest they be lost sight of, let me repeat them here. The new criminology of the late nineteenth and early twentieth century promised an exact and scientific method for the study of crime, a technical means of resolving a serious social problem, and a genuinely humane hope of preventing the harm of crime and improving the character of offenders. The present paper does not seek to deny these progressive elements, nor to question the motivation of the individuals who took up criminology and promoted its demands. But it does seek to question the notions of science, of crime and of rehabilitation which underpinned this movement, and it suggests that in the detailed formulation of its arguments criminology colluded in a definite set of political assumptions and policies. The paper's critical stance derives from a recognition of the unstated and unjustified nature of this collusion and from the view of the author that its consequence was more often the continued repression of disadvantaged sectors of the population than the liberation of society from the problem of crime.

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  The Private Provision of Public Goods: Principles and Implications

  Clayton P. Gillette

  Liberal economic theory conventionally assumes that society cannot rely on the market to provide public goods and, therefore, that such goods must be provided by the government. This assumption implies that the concept of public goods provides an inherent limit to the scope of economically optimal privatization. Professor Gillette argues that no such clear categorical distinction can be maintained consistently with the goal of economic efficiency. Determining whether goods are more efficiently provided by the market or by the government requires a particularistic analysis of the comparative institutional advantages and disadvantages of the market and the government.

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  The Best Interests of the Child: Much Ado about Nothing?

  Martin Guggenheim

  There is a fundamental paradox in the way child custody disputes are resolved. Under the traditional standard for resolving such disputes, the court must decide the case on the basis of the “best interests” of the child. Yet the very use of this standard often produces results that are inconsistent with the “best interests” of the particular child or children.

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  Environment and Trade: The GATT/WTO Regime in the International Legal System

  Benedict Kingsbury

  Connections between environmental protection and international trade have been recognized for many decades. In recent years the political rise of environmentalism has focused acute attention on possible conflicts between environment and trade values and rules. National environmental law has become more comprehensive and more central in most polities, and present or proposed measures of environmental protection often touch matters addressed by international trade rules. International environmental law has also developed rapidly, with little systematic consideration of its relation to existing or evolving rules of the international trading system. The ability of institutions engaged with the law and policy of international trade to take account of environmental law and policy has varied sharply. The principal global trade institution of the period since the Second World War has been the General Agreement on Tariffs and Trade (GATT), which has evolved considerably through practice and through formal agreements reached in eight negotiating rounds culminating in 1994 in the Uruguay Round agreements folding GATT into the newly established World Trade Organization (WTO). The inability of the GATT/WTO regime to adapt trade rules to take fuller account of emerging environmental concerns has led to present and potential conflicts, not only of policy but also of legal obligation. GATT and the WTO, which at last provides a regularized institutional structure to encompass the improvised arrangements crafted after the failure of the Havana Charter for an International Trade Organization to come into effect in 1948, face the challenge of developing agreement on accommodation of environmental objectives within the structure of the GATT/WTO trade rules, and of responding effectively to concerns about the adequacy of GATT/WTO institutions and procedures for dealing with trade-environment issues. Failure to find adequate means of reconciling the GATT/WTO trade regime with heightened environmental interests threatens both to obstruct the attainment of environmental and trade objectives and to add the sustained weight of the environmentalist lobby to the existing pressures on liberal international trade. This chapter examines the extent to which GATT/WTO law may conflict with environmental objectives, and considers possible strategies for reconciling such conflicts within existing institutional constraints. The 1947 General Agreement on Tariffs and Trade, while raising no obstacle to many environmental initiatives states choose to take, contains no express reference to environmental objectives, and was crafted to accommodate only a limited range of trade-environment intersections. Supplemental agreements and other documents concluded over the following four decades made important contributions to the GATT system but for the most part treated environmental issues as peripheral. The Uruguay Round was already far advanced by 1991 when NGOs in the United States and elsewhere were galvanized by the report of the Dispute Settlement Panel upholding Mexico's complaint against a United States embargo on imports of tuna caught by vessels of countries with a high rate (measured by reference to United States practice) of incidental dolphin mortality. Recognizing the serious political controversies and technical complexities of integrating environmental objectives into the trade package, as well as the risk of the Round collapsing under the weight of new issues, negotiators elected to postpone most of the difficult environmental issues. The Uruguay Round agreements concluded in April 1994 take only very limited account of environmental concerns, although their adoption was accompanied by proposals for the establishment of a Trade and Environment Committee in the WTO in which environmental issues could be further addressed. It is not surprising that the GATT/WTO regime has had more difficulty in addressing trade-environment issues than regional institutions with much smaller and less diverse memberships. The greening of the European Community began with the adoption of the first environmental Action Plan in the aftermath of the 1972 Stockholm Conference, and has been implemented through amendments to the Treaty of Rome as well as numerous directives and other instruments in the environment field. It has thus been possible for the EU simultaneously to address environment and trade issues with a degree of coherence, although this has by no means eliminated all conflicts between the different objectives. In the case of the North American Free Trade Agreement (NAFTA), the initial unwillingness of the parties to include provisions on environmental protection was overborne by an NGO-led political outcry in the United States. The 1992 NAFTA together with the 1993 North American Agreement on Environmental Co-operation do not themselves establish significant environmental standards, but they provide means to address several of the most contentious environment-trade problems, and the 1993 Agreement provides for the establishment of a North American Commission for Environmental Co-operation with reasonably extensive powers to supervise enforcement of national environmental laws and to initiate and promote environmental co-operation. The GATT/WTO regime has no authoritative source of substantive environmental standards to weigh alongside trade standards, only a politically limited and arduous process for making new rules, and a system of dispute settlement and supervision that has not hitherto been environment-oriented or as open as many environmentalists wish.

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  Informed Consent and Reproductive Choice

  Sylvia A. Law

  This Symposium on Patient's Rights underscores the value of multinational approaches to issues of law, ethics and medicine. Thus, I regret that this chapter focuses on the United States. The question addressed here—how should doctors talk with pregnant women?—arises throughout the world. More cross cultural analysis would benefit everyone. The limits of my knowledge and information force me to emphasize issues of abortion practice and policy within the United States. In 1988, 6.4 million women became pregnant in the United States. Of these, 3.9 million, or 60.7 % gave birth and 1.59 million, or 24.7 %, had abortions. Some women confirm their pregnancies at home with a commercial test kit, consult with their own conscience, their partners, parents or friends, make a decision and find their way to a provider who can help them to continue or to end the pregnancy. But often it is a health care provider who informs a woman that she is pregnant. This article explores the ethical and medical principles that should guide physicians and other health care providers in conversations that follow the confirmation of pregnancy. At an abstract level, principles of medical malpractice and medical ethics require responsible physicians to facilitate choice for all patients. The first section demonstrates that legal principles developed in four contexts support the claim that physicians should facilitate informed patient choice: A) common law concepts of informed consent; B) medical malpractice cases recognizing a cause of action for wrongful birth; C) malpractice and professional standards defining physicians' obligations to make referrals for services a treating doctor is unable or unwilling to provide, and D) constitutional principles protecting patient choice. Despite this abstract commitment to patient choice the next section demonstrates that contemporary patterns of medical practice are systemically anti-choice and anti-abortion. This anti-choice bias is reflected in and reinforced by contemporary standards of medical ethics, licensing and accreditation standards, and patterns of medical education and practice. The following section defends a model of responsible professional behavior that requires the practitioner to help the patient to reach an informed decision and to find the medical services that meet her needs. It builds upon the ethical principles and practices of responsible abortion providers. These clinics offer a concrete model of informed consent to facilitate choice for pregnant women. This is followed by the considerations of objections that might be raised against applying these ethical and legal principles to counseling for pregnant women in settings other than abortion clinics. It concludes that the physician's own moral views about abortion cannot excuse the doctor from his or her ordinary ethical and legal obligations to facilitate choice for pregnant women through counseling and referrals. The section that follows demonstrates that in practice neither constitutional concepts, malpractice remedies, nor state legislative mandates are likely to provide effective legal incentives to encourage physicians to facilitate choice. A variety of factors, extrinsic to the core value of patient choice, make it inappropriate to look to these sources of law to protect the reproductive choices of pregnant women. The final section explores the questions of how actors, other than constitutional and common law courts, can encourage conversations between pregnant women and physicians to facilitate choice. It argues that professional associations and medical educators, working together with organized women, should take the initiative to address these issues. While focus here is on the conversations between individual pregnant women and physicians, the problem addressed has a broader social aspect. The individual physician does not act in a vacuum. Rather, he or she is influenced by medical education, ethical standards, economic factors, accreditation and licensing requirements for medical education and health care facilities, the law, the press, and the larger cultural environment. In the 1980s provision of abortion services became increasingly concentrated in specialized clinics, as general physicians and hospitals declined to provide the service. These clinics, their medical personnel, and their patients are subject to harassment and violence. Medical education, after initially creating programs to train physicians to perform abortions, abandoned this training in the 1980s. In 1991, only thirteen percent of US residency programs training specialists in obstetrics and gynecology required training in first trimester abortions, and only seven percent required training in second trimester abortions. In 1988, there were no abortion providers in 83 % of the counties in the United States. Further, the segregation and devaluation of abortion services is not confined to states in which anti-choice views are political dominant. These US patterns are quite different from those that prevail in other developed Western nations. As in the US abortion is legal—either on request or for a broad range of social or personal reasons—in every developed Western nation, except for Ireland. However, the US is the only developed Western nation in which abortion is not financed through general public health insurance programs. The lack of funding, and other legal and practical barriers to abortion, mean that in the US far more abortions are delayed to the second trimester than in other developed Western nations. Abortion, one of the most common surgical procedures in the United States, has been marginalized by the medical profession. This article explores the concrete mechanisms by which abortion can be brought into the mainstream of American medicine. It argues for ethical and legal norms to encourage ordinary physicians to engage in a dialogue with pregnant patients to facilitate choice and make appropriate referrals to help the woman act on her choice. Such norms would make explicit the values of self-determination and bodily integrity generally recognized by medical ethics and legal principles, yet ignored for pregnant women in mainstream medical practice. Recognition of such a norm would have an important effect on interactions between individual patients and providers and also would impact the larger political and social status of abortion. For example, to make an appropriate referral for a pregnant patient who seeks an abortion, the physician must be informed about the availability of such services. In many parts of the country, women seeking abortion confront large obstacles of travel, cost and delay, as well as risks of harassment and violence. Mainstream medicine's current failure to facilitate choice for pregnant women contributes to the invisibility, unavailability and vulnerability of abortion services.

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  Updating Urban Policy

  Jeffrey S. Lehman

  In the 1990s, urban policy is once again at the forefront of antipoverty discussions. Early in the decade, escalating economic and racial polarization in and around America's largest cities facilitated outbursts of violence against and by poor minority groups. During the 1992 presidential campaign, the three major candidates all emphasized the need to develop policy elixirs that might restore a sense of urban health. Other chapters in this volume discuss general antipoverty policies. Given the high concentration of poverty in the cities, those policies are inseparable from any serious discussion of urban policy. Indeed, a strong case can be made that the best urban policy is not limited to cities but is, rather, a “nonurban urban policy”. This chapter's mandate is to consider the most prominent urban policy proposals that are not discussed in other chapters. Two such proposals stand out. “Enterprise zones” are (primarily) an urban urban policy, designed to stimulate economic activity in depressed neighborhoods. “Guaranteed public jobs” are a nonurban urban policy, many of whose beneficiaries would be residents of the country's most depressed cities. How should one evaluate such proposals? One fruitful source of ideas is history: one can review the knowledge gained from our nation's experience with similar programs in the past. A second source is theory: one can attempt to measure such programs according to how well they promote whatever societal aspirations one thinks most relevant. In the domain of urban policy, for example, such aspirations might include the commitment to give each citizen a fair opportunity for geographic and social mobility through employment. This chapter aims to synthesize historical and theoretical arguments, in order to frame an agenda for updating urban policy.

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  Consciousness and Objective Reality

  Thomas Nagel

  We do not at present have even the outline of an adequate theory of the place of mind in the natural order. We know that conscious mental processes occur as part of animal life, and that they are intimately connected with behavior and with the physical activity of our nervous systems and those of other animals. But at the more general, one might say cosmological, level, we know essentially nothing, for we do not understand why those particular connections exist. Our knowledge is entirely empirical and ad hoc, not theoretical. Much discussion in the philosophy of mind is concerned with the problem of intentionality: what it means to attribute content to mental states like belief, desire, thought, perception, and so forth. This topic also links discussion of the relation between the mind and the brain with discussion of the relation between natural and artificial intelligence, and of the possibility of ascribing mental states to computers, in some distant future stage of their development. However I believe that the most fundamental problem in the area is that of consciousness. While consciousness in the form of pure sensation does not in itself guarantee intentionality, I believe true intentionality cannot occur in a being incapable of consciousness. The nature of this relation is very unclear to me, but its truth seems evident. We may assign meaning to the operations and output of an unconscious computer, as we can assign meaning to words in a book, but the computer can't mean or intend anything itself by what it says or does. For this reason I believe it is at present not possible to speculate fruitfully about the question whether artificially created physical systems could have minds. We can say nothing interesting about this when we know so little about why we have minds, or why the other natural organisms to which we find it natural to attribute mental states have them. What is it about a system constructed as we are that explains why it can feel, perceive, want, believe, and think? Until we can begin to answer that question at some level of generality, we are unlikely to say anything useful about whether systems of a radically different physical type could do those things. Ultimately, a person's opinion concerning this question will depend not merely on his scientific beliefs but on his philosophical beliefs about the mind-body problem. That is because it is a philosophical question, what a general theory of mind would have to account for to be adequate. There are those who believe, for example, that mental states can be defined in terms of their causal role in the control of the organism. When this definition refers to a system of interacting states, definable entirely in terms of their relations to physical inputs, behavioral outputs, and to one another, the view is called functionalism. If functionalism were correct as an account of what it is for a being to have a mind, or to be the subject of mental states, then nothing more would be required for a general theory of the physical conditions of mind than an account of how physical materials can be put together to construct systems whose functional organization was of the right type. To explain this would be a stupendous task; and it is not at all obvious that the same functional organization that characterizes a mouse, let alone a human, could be embodied in a completely different type of physical system, in the way that much simpler functions like addition can be carried out by different physical machines. But at least we can understand the general character of the question. The possibility of an alternative physical realization of visual perception, for example, would depend both on the functional analysis of that mental faculty and on the possibility of replicating that type of functional operation in a structure physically quite different from the standard biological model. Such a theory would enable us to consider the possibility of the eventual construction of artificial minds, through the creation of systems which mimic the behavior and functional organization of human and other animal organisms. I believe, however, that functionalism, though part of the truth, is not an adequate theory of mind, and that the complete truth is much more complicated and more resistant to understanding. In addition to their functional role in the explanation of behavior and their concrete physiological basis, conscious mental states have characteristics of a third type, familiar to us all, namely their subjective experiential quality: how they are or how they appear or feel from the point of view of their subjects. However true it may be that mental states and processes play a functional role in the behavioral life of the organism, these experiential or phenomenological qualities of conscious experience are not simply equivalent to those functional roles. And however closely tied these phenomenological qualities may be to specific neurophysiological conditions, they are quite clearly not analyzable in terms of the physical description of those conditions.