Faculty Chapters

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  Free Speech as Toleration

  David A. J. Richards

  The theory of free speech is a natural subject of interdisciplinary and comparative study for both political philosophers and lawyers. First, it has a highly abstract component, in which issues of general normative philosophy (for example, utilitarian or perfectionist teleological consequentialism versus deontological natural rights) are at stake; and second, it has a historical and contextual component, in which free speech is embedded in a historically evolving tradition of constitutional thought, including both political and legal arguments made over time about its proper meaning. The proper balance between these two components (political theory and interpretive history) differs in various legal systems all of which are committed in some form to free speech. Nations with written constitutions and judicial review (the United States, Canada, Germany, and the nations governed by the European Convention of Human Rights) give greater play to abstract normative argument than a nation like Britain, in which free speech is a principle of common law in light of which supreme parliamentary law is interpreted; and those nations with long traditions of judicial review under written constitutions with highly abstract language (like the United States) refer more often to both abstract arguments of political theory and the long history of their interpretive experience than nations (such as Germany) with relatively recent post-World War II written constitutions (with US-style judicial review) in which guarantees have been drafter in more specific terms. The two components of the study of free speech will accordingly interact in different ways depending on such distinctions. For example, the normative theory of utilitarianism may naturally fit the British constitutional landscape of free speech, while a deontological theory of rights may be the better account of both US and German constitutionalism. Even systems (like Germany and USA) that appeal to a comparable rights-based deontological theory and judicial review may, as we shall see, quite differently interpret such theory in ways that bear directly on central issues of free speech (for example, the constitutionality of group libel laws). This essay addresses both components of the theory of free speech from a US constitutional perspective on these issues. I begin by sketching and criticizing two general normative theories of free speech (namely, utilitarianism and the argument from democracy), and then present a third view (free speech as tolerations) and discuss its substantial merits both as political theory and an account of America’s historically continuous interpretive experience. I bring the force of my argument into sharper focus in the form of a concluding defence of US constitutionalism’s quite distinctive view that the principle of free speech renders group libel laws constitutionally problematic.

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  Liberalism, Free Speech, and Justice for Minorities

  David A. J. Richards

  Joel Feinberg’s political philosophy is to twentieth century thought what John Stuart Mill’s was to that of the nineteenth century, the classic contemporary articulation of the moral demands of the liberal conscience. Feinberg, like Mill, has focused on that subclass of demands imposing limits on the criminal law as a distinctive form of political power requiring justification. Those demands are of two sorts: the specially stringent limits on the criminalization of expressions of conscience and speech, and the general limiting principles on the criminalization of acts in general. Feinberg, like Mill, has sought to articulate common principles governing both areas, for example, principles requiring some showing of harm or offense to others as a necessary condition of criminal liability. Presumably, such principles would, if plausible, explain the special burden of justification required to justify abridgement of expressions of conscience or speech in contrast to acts in general. For example, the criminalization of conscience might, on grounds of the harm principle, more often illegitimately fail to satisfy this principle than criminalization of acts in general. That fact, if it is a fact, might explain why the abridgement of conscience more often fails to satisfy the demands of liberal principle than the criminalization of acts as such, and thus the special stringency of the political principles limiting the abridgement of speech. The idea of a unified liberal theory of this sort is subject, however, to two kinds of objections, one internal to the project, the other external. The internal objections queries whether anything so simple as the harm principle can explain the special protection liberalism extends to conscience and speech. For example, much speech harms people, and many self-regarding acts harm no one, so the special protections of speech in contrast to action seems misplaced on grounds of the harm principle. Something more by way of principle is apparently required to justify the characteristically liberal concern for protection of conscience and speech. The external objections does not infer from such consequences of the reasonable interpretation of the harm principle that the principle is itself questionable, but on the ground of the harm principle questions the liberal project itself, in particular, the protection liberalism accords forms of conscience and speech that apparently work injustice on minorities. The classic example of such harmful speech has been blatantly racist and anti-Semitic speech, speech that libels a group by falsely attributing to members of the group morally degrading characteristics; a more recent example to similar effect is pornography that allegedly libels women as such by falsely attributing to them a morally degrading sexual availability, including desires to be raped. If the harm principle limits criminalization to speech or actions that on balance inflicts harms on persons, group libel, sot the external objection goes, inflicts such harms; and thus the liberal protection of such speech is misplaced. Sometimes, this external objections is expressed as a more general critique of liberal individualism and neutrality on the ground that its intrinsically atomist and abstract modes of argument fail to capture, indeed render invisible and inarticulate, the distinctive forms of injustice that racism and sexism inflict on minorities. Liberalism and these claims of injustice work, as it were, at cross purposes; and liberalism, because it cannot give these claims the weight they deserve, must yield place to political theories less wedded to its internal ideals of individualism and neutrality. I want to offer here a critical response to the external objection that addresses its central concern, the nature and weight of the distinctive injustices inflicted by racism and sexism and the remedies appropriate to such injustices. The two questions—the nature of the substantive injustice and its remedy—are fundamentally integrated, as the external objection itself makes clear. It is precisely because the external objections interprets the injustice of racism and sexism in a certain substantive was that it takes the prohibition of the harm inflicted by group libel as a remedy appropriate to ending that injustice. My argument will be, to the contrary, that the proper analysis of the injustice of both racism and sexism necessarily makes reference to rights-based liberal political theory and that the appropriate remedies for such evils must reasonably respect the basic rights (including free speech) on which their critical analysis stands. I begin with the analysis of the evil of racism and examine the constitutionality of group libel laws from that perspective, and then offer a similar discussion of sexism and corresponding constitutional doubts about antipornography laws.

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  Revolution and Constitutionalism in America

  David A. J. Richards

  The American Civil War is now conventionally termed by American historians as the second American Revolution. The implicit idea of a relationship between the two events is not merely one of temporal succession in the same general territory; the second American Revolution was understood by both the Union and the Confederacy as a controversy over the political theory of the first Revolution and the constitutional terms under which it justified its claims. The Reconstruction Amendments are the culminating constitutionalism of this controversy, and should be understood within the framework of the genre of what Americans understood as their revolutionary constitutionalism. We need initially to examine the tradition of revolution and constitutionalism of 1776-1787, and then tum to the elaboration of that tradition in the revolution and constitutionalism of 1861-1870.

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  Interstate Commerce, Environmental Protection, and U.S. Federal Law

  Richard B. Stewart

  This essay summarises the role of the United States Supreme Court and the Congress in dealing with the legal and institutional problems of environmental policy in a federal system with a common market. The commerce clause of the United States Constitution has been the principal source of national authority to harmonise and advance economic and social policy, including, in recent decades, environmental policy. In the absence of relevant national legislation, the Supreme Court has used the commerce clause as a source of judicial authority to strike down State measures that unjustifiedly infringe the free movement of commodities within the common market. Courts achieve partial harmonisation by the negative means of selective invalidation of State laws. Affirmative measures of harmonisation through national legislation are, however, also needed in order to ensure a progressive environmental policy in the face of competition among States for industry and the problem of interstate pollution spillovers. During the past 25 years, Congress has relied on the commerce clause to adopt sweeping national programmes of pollution and hazardous waste control and remediation. The implementation of such legislation must, however, still confront distinctive problems that arise in a federal system. One is the question of preemption: does national legislation preempt more stringent State law? The other is the problem of dealing with interstate conflicts created by pollution spillovers that are not adequately addressed by national law. The raison d’etre f a federal polity is to reap benefits from co-operation and scale economies without full centralization. Decentralised decision making by independent States often fails to secure citizens’ welfare because of various kinds of interstate externalities or spillovers. Because of these externalities, a system of independent States may “fail” for reasons similar to why markets composed of independent economic actors sometimes “fail”. In both situations, collective action may reduce the costs associated with these spillovers and prove mutually beneficial. On the other hand, rivalry among individuals or States for economic advantage may prevent or undermine such co-operation. Yet excessive centralization through national regulation or control has its own perils. In the context of environmental policy, the problems of State conflict and co-operation are quite different as regards regulation of products and wastes on the one hand, and regulation of industrial processes on the other. Different State regulations of products or wastes pose a clear threat to the internal market and the associated economic integration that are basic objectives of a federal political system. Accordingly, harmonisation of such measures must be a central objective of federal systems. The threat to the internal market stems from the strong strategic position of States importing products manufactured in other States. By contrast, a State that is downwind of an air pollution source in another State cannot block the pollution. Nor can it block lax environmental process regulation in another State that gives industry in the other State a competitive edge in world markets. In these situations, collective action is needed to deal with such problems. In the case of products self-help is readily available. A State may simply prohibit the import from other States of products that it judges deficient from the viewpoint of environment, health, or safety. This form of self-help, however, can and has been used from protectionist purposes. Further, self-help threatens to create a tangle of conflicting or cumulatively burdensome requirements in different States, preventing full realisation of scale economies in manufacture, distribution, and marketing. Similar problems arise in the context of State regulation of waste, which can be viewed as a negative product. State restrictions on imports of wastes can prevent realisation of scale economies in waste treatment and disposal, and also prevent disposal of waste at locations that are most appropriate from an environmental perspective. The federal courts have addressed these problems by invalidating certain State regulatory measures under the commerce clause. In some cases, Congress has legislated national product regulatory standards. Process regulation present problems for a federal or supranational political system that are fundamentally different from the problems created by product regulation. Pollution spillovers occur when pollutants generated by industry or agriculture cross State boundaries. The polluter State has little or no incentive to take the interests of the receiving State into account in deciding on the extent of environmentally protective measures. As a result, excessive pollution will be generated. Competitive spillovers are created by the effects of State environmental regulatory decisions on competition and industrial location. A State will be reluctant to impose strict controls on its industry for fear that its industry will suffer a competitive disadvantage relative to industry in other States. The mobility of capital and other production factors within the common market may encourage States to adopt lax environmental controls in order to attract industrial development. These pressures will be intensified by uncertainty regarding the strategic responses of other States. As a result, all States may suffer from greater pollution than would occur if there were no economic spillovers. States adversely affected by the pollution and competitive spillovers associate with processes and their regulation cannot protect themselves through the self-help mechanisms available in the product regulatory context. Moreover, litigation is, as a practical matter, of little assistance in the case of most pollution spillovers and affords no remedy for competitive spillovers. Selective invalidation of State laws by the Supreme Court also cannot deal effectively with these problems. They must be address through affirmative national legislation.

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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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  Foreword: Art and Secrecy

  Kwame Anthony Appiah

  A stunning collection of essays and photos of artwork, published by the Museum for African Art, 593 Broadway, New York, NY 10012, in conjunction with an exhibition organized and presented by the Museum. New interest has been ignited in looking at African art for its ideas for the visual expression of "solutions that African civilizations have invented to problems that still vex us problems of the environment, of healing, of social and spiritual strength and cohesion these African ideas now attract and surprise with the power that African sculptural forms did in the early century..." (from the introductory essay). The theme of secrecy is profound and far reaching.

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  "No Bad Nigger": Blacks as the Ethical Principle in the Movies

  Kwame Anthony Appiah

  Coverage of such major news events as the Gulf War, the AIDS epidemic and the William Kennedy Smith rape trial is analysed by contributors who explore the languages of word and image that produce current events as spectacle.

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  Technology-Based Approaches versus Market-Based Approaches

  Dan Dudek, Richard B. Stewart, and Jonathan Wiener

  The United States has experience with the two major kinds of tools available for environmental policy: technology-based, command-and-control (CAC) approaches that select a technology for industry to install; and market-based approaches that create economic incentives for industry to reduce harm to the environment, while leaving the choice and innovation of specific technologies and techniques to private actors. In the US, federal and state governments increasingly are employing the market-based approach, with both environmental and economic benefits. Archetypal CAC regulations rely on uniform, inflexible, technology-based standards issued by the central government. This approach results in high compliance costs, restricts innovation, and discourages efficient use of resources. These rules also require detailed central planning of economic activity. Because the cost of controlling pollution varies among those subject to regulation, a CAC policy requiring them all to meet the same target or to install the same technology, means that some regulated entities could achieve the same environmental protection through less costly means, or more protections for the same cost. Consequently, a CAC approach forces society to pay for relatively expensive environmental protection. This wastes resources and potentially arouses resistance to further environmental protection measures. In the longer run, CAC, technology-based regulation deters innovation by locking in a chosen technology and eliminating the market’s reward for superior techniques; the resulting dearth of better technologies weakens the ability of CAC regulation to prevent environmental degradation. With a market-based incentive approach, the government still sets firm environmental goals, but defines them in terms of environmental performance, not technology, leaving the choice of specific response and compliance strategies to each individual enterprise. The flexible, market-based approach harnesses the economic self-interest of each business in the service of environmental protection. Unfettered by uniform and technology-based standard, firms creatively meet these goals in the most cost-effective manner, and responses are devised to meet the needs of diverse local circumstances. Economic incentives encourage innovation of new technology and process designs, and efficiency in the use of raw materials and other inputs. Whereas improvements occur under CAC policy only when rules are reviewed and strengthened by government agencies, market-based incentives invite continuous environmental entrepreneurship in the private sector. The lower cost of compliance under market-based incentive approaches enables society to purchase more environmental protections or other desired benefits. In the US, market-based approaches have been employed with great success in several real-world applications. They have effectively achieved environmental goals while generally cutting the costs of achieving those goals by 25 to 50 per cent or more. Yet the US CAC-dominated environmental policy of the last two decades has taken its toll, both economically and environmentally. The rediscovery of market-based incentive tools in the last five to ten years has opened the door to better policy here, which we believe should be the model for policy in Eastern Europe. Support for this proposition begins in the section entitled ‘Approaches to Environmental Policy’ with a comparison of the attributes of technology-based and market-based environmental policies: their structure and incentive effects, and their impacts on cost, performance, innovation, and government agencies. This sections assembles the conceptual case for market incentives. In the following section, ‘The Need for Comprehensive Policy’, we emphasize the importance of viewing environmental issues comprehensively rather than dividing problems and treating them in narrow, piecemeal fashion. We then build the practical case for market incentive and finally, based on this experience, we suggest consideration as to how best to design environmental policy.

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  Some Reflections on the Future Development of Collective Representation and Individual Rights in the Workplace

  Samuel Estreicher

  I will hazard the prediction that even with the passage of strikebreaker legislation, collective bargaining as we know it is not likely to be a dominant, or even important, feature of employment in this country. While this is not the place for a detailed account of the causes of union decline, I am skeptical of the view that the principal cause is employer illegality facilitated by the remedial deficiencies of our basic labor law, the National Labor Relations Act (NLRA). Employer opposition and a relatively toothless labor law have been constants throughout the history of American unionism, and yet union density rose significantly in the 1930s and 1940s and has declined ever since.

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  Must Preferences Be Respected in a Democracy?

  John A. Ferejohn

  In “Democracy and Shifting Preferences,” Cass Sunstein argues that democratic government must not take privately held preferences as the sole basis for its decisions—a view he criticizes as subjective welfarism—and that sometimes it is permissible or even obligatory for a democratic government to intervene in the formation of the preferences of its citizens. Thus, Sunstein seeks to cast doubt on the ideas that private desires and beliefs ought to be respected in all contexts and that they could be the unique source of legitimation for public action. In particular he argues that “in three categories of cases, private preferences as expressed in consumption choices, should be overridden. The first category involves . . . collective judgments, including considered beliefs, aspirations for social justice, and altruistic goals; the second involves preferences that have adapted to undue limitations . . . or to unjust background conditions; the third points to intrapersonal collective action problems that, over a lifetime, impair personal welfare.” Once we accept this claim, Sunstein suggests that we are committed to accepting a theory of democracy that is significantly different than the subjective welfarist view, which locates the authority for public action purely in its relation to privately held preferences. He means to criticize an economic conception of government that sees justifiable public action as aimed at remediating market failure and “is dominated by a conception of welfare based on the satisfaction of existing preferences, as measured by willingness to pay; in politics and law, something called ‘paternalism’ is disfavored in both the public and private realms.” A more serviceable democratic conception would recognize the central place of deliberation in promoting both individual autonomy and a richer conception of welfare. Sunstein introduces some specific examples in which the case for public action aimed at affecting preferences appears intuitively to be more or less persuasive. These cases include addictive behavior, preferences that are formed in miserable social conditions, broadcasting of high-quality programs, and the like. That the case for intervention is persuasive in each of these cases seems to require that we adopt an understanding of the relationship between the preferences of citizens and democratic rule that can account for these intuitions. Second, he claims that a republican conception of government can explain why it is that public intervention in preference formation is justified in these cases and that a subjective welfarist conception cannot. I begin by formulating two views that are characteristically suspicious of public intervention in the preferences of citizens. In the subjective welfarist view, individuals are supposed to be prefabricated independent moral entities who exist complete with well-formed preferences in some sense prior to and independently of society and the state. On the surface, in this case, state intervention in preference formation seems at best inefficacious and in any case of doubtful ethical status since the only source of authority in this view is individual agreement. I shall claim later on that, depending on how “preferences” are to be understood in this view, this (neoclassical or Hobbesian) theory need not generally resist state intervention in preference formation. What I call the Burkean view holds that while individual preferences are formed in social, economic, and institutional settings and might be, therefore, subject to alteration as a result (deliberate or not) of governmental actions, it is hard both to know what these effects are and, even if the effects were known, to believe that political actors will generally either wish or be able to make appropriate choices. The Burkean view does not take a foundational stand against political intervention in preference formation but, instead, is practically skeptical about such policies having good effects and is concerned about licensing a coercive agency in these circumstances. A conservative Burkean may argue that it is wrong for government to take actions aimed at altering preferences because government will tend as a matter of “fact” to get things wrong. But Burkeans are not committed to regard government with any greater suspicion than they do social or economic processes. In general, whether or not government intervention or nonintervention in preference formation is defensible depends on having a satisfactory theory that allows one to predict the likely results of such actions. In this sense the Burkean view hardly seems to provide a basis for rejecting government intervention in preference formation in favor of letting other processes work. Sunstein gives a number of examples in which he believes that government intervention aimed at influencing preferences might be justified. These include cases of addiction, in which individuals come to have preferences based on their consumption histories and which they themselves might see as preferences that are somehow harmful to them; the distribution of wealth or opportunity, which Sunstein argues might affect the sorts of things that individuals come to want by unduly constraining their views of what is possible for them to do or want in their lives; and the allocation of cultural political information that, he suggests, would not be provided at sufficient levels in the private economy.

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  Structure and Ideology: Change in Parliament in Early Stuart England

  John A. Ferejohn

  Institutions are limited in the kinds of things they can do. Parliaments, as “representative” institutions having relatively little control over their memberships, generally find it difficult to organize themselves to participate actively in government. The relative equality of members makes difficult the development of internal mechanisms of coordination and control that would permit a collective body to take rapid and effective action. Not surprisingly, such institutions find it easier to specialize in legislative or deliberative activities than in administrative or governing ones. This specialization, however natural, is a matter of degree, and legislatures have played a greater governmental role in some circumstances than in others. Historians have sometimes argued, indeed, that there is an inexorable trend in this direction: that we should see in parliamentary history a series of generally successful attempts to grasp “the initiative” from nonelective institutions. This view—that the democratic impulse is immanent in human history—is no longer so popular among historians as it once was, both because of the implausibility of linear theories of history in light of modern events and because of some critical failures of evidence to support it. As social scientists, however, without embracing linear theories, we might nevertheless expect that there might be specifiable conditions under which legislatures would be more powerful participants in government. This is the issue we begin exploring here.

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  The Spatial Model and Elections

  John A. Ferejohn

  If it had made no other contribution to our thinking about politics, Anthony Downs's An Economic Theory of Democracy would be widely and justly acclaimed for introducing and expositing the spatial theory of electoral competition. This theory not only provided the basis for the development of formal models of electoral politics-specifically for a unification of a theory of voting behavior and a theory of electoral competition within the same model-but it also transformed the way that empirical researchers and even casual observers think and talk about electoral politics. It became common to try to account for the fortunes of candidates by referring to their "locations" in an issue space relative to the distribution of voter preferences. Indeed-and this is the acid test of the acceptance of a theory-as it became clear that various of the "predictions" of the spatial theory were not actualized in data from real elections, researchers responded by trying to improve measurement and observation technology, or by refining the theory, rather than by jettisoning the spatial theory as a whole. The spatial metaphor has by now become such a common and powerful way of portraying electoral competition that students and journalists unselfconsciously depict electoral phenomena in its terms, without recognizing either its limitations or its foundational assumptions. But in his original introduction of the spatial model Downs is actually quite cautious with regard to the applicability of the spatial theory to actual elections. He spends a good deal of effort and space in his book examining the conditions under which electoral competition could be understood in the terms of the spatial model. Specifically, he tries to develop a theory in which parties compete for office by making promises and voters base their votes on a comparison of these promises. In this chapter I explore an issue that is crucial to the applicability of the spatial model of elections: the question of whether or not, within the spatial model, campaign platforms can actually have predictive or informational value for the voter. Obviously, unless platforms contain information as to what candidates would do in office, it would not be rational for voters to base their behavior on them. In this sense, the spatial model rests on the assumption that campaign platforms are useful guides to the future behavior of politicians. I show that it is by no means obvious that platforms can serve this function required of them by the spatial approach.

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  Punishment

  David W. Garland

  To punish is to impose a penalty in response to and in condemnation of a rule violation. The process of punishment is thus the deliberate imposition of some form of hard treatment and stigmatization on an agent deemed responsible for violating a norm. Penalties which lack any element of condemnation such as library fines—are not, strictly speaking, punishments. Nor are measures such as ‘preventive detention’ which are imposed on the basis of predicted future conduct rather than past offences. The status of compulsory measures of care and treatment, where these are imposed in response to deviant conduct—for instance by a juvenile court—is ambiguous. Such measures may be experienced as punitive and stigmatizing because of their context or use, even though they aim to provide help or therapy for the recipient. Punishment occurs in a variety of social contexts, and in one form or another is probably an intrinsic property of all settled forms of human association. Families, schools, workplaces, networks of friends or even nation-states all punish their deviant members from time to time, using sanctions which can range from a mild rebuke to a full-scale military assault. However, the central case of punishment in modern society is judicial punishment—the legal process whereby violators of the criminal law are sanctioned in accordance with specified legal rules and procedures, and undergo a punishment which is administered by state officials. It is thus judicial punishment which has formed the focus of attention for most modern thinking about punishment, although the behavioural effects of punishment in other contexts have been the subject of much psychological research.

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  Sociological Perspectives on Punishment

  David W. Garland

  The sociology of punishment offers a framework for analyzing penal institutions that, potentially at least, can give a fuller and more realistic account than the punishment-as-crime-control approach of penological studies or the punishment-as-moral-problem approach of the philosophy of punishment. Sociological perspectives view punishment as a complex social institution, shaped by an ensemble of social and historical forces and having a range of effects that reach well beyond the population of offenders. The Durkheimian perspective interprets punishment as a morality-affirming, solidarity producing mechanism grounded in collective sentiments. Marxist studies depict punishment as an economically conditioned state apparatus that plays an ideological and political role in ruling class domination. Foucault's work focuses on the specific technologies of power-knowledge that operate in the penal realm and links them to broader networks of discipline and regulation. The work of Norbert Elias points to the importance of cultural sensibilities and the “civilizing process” in the shaping of modern penal measures. Elements of these interpretive traditions can be brought together to produce a multidimensional account of punishment's social forms, functions, and significance that can, in turn, help promote more realistic and appropriate objectives for penal policy and a fuller framework for its normative evaluation.

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  Tocqueville and Democracy

  Stephen Holmes

  At the beginning of Démocratie en Amérique, Alexis de Tocqueville asserts, with no clarifying explanation, that his book is unified by une pensée mère, translated ingeniously into English as “one pregnant thought.” There is plenty of room for disagreement about this key idea, this fil conducteur purportedly woven through a long, kaleidoscopic, detour-studded, and loosely organized work. Perhaps the master concept, tying Tocqueville's cascade of insights together, is a memorable descriptive claim: that mœurs are all-important, that a society's starting point determines its subsequent fate, or that the abolition of primogeniture and legal inequalities has revolutionized the old European world, leaving nothing unchanged. But given Tocqueville's turn of mind, especially his addiction to eye-catching paradoxes, the most likely candidate for the book's leading thought is this: “Extreme freedom corrects the abuse of freedom, and extreme democracy forestalls the dangers of democracy.” Unless you exaggerate, Tocqueville believed, no one will understand what you have to say. So, the question readers must ask is: What does this particular exaggeration mean?

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  Economic Union and Income Tax Harmonization in Canada

  Robert L. Howse

  Papers presented at the Policy Forum on Tax Policy for Turbulent Times, co-sponsored by Arthur Andersen & Co. and the Faculty of Management, University of Toronto and held in Toronto, Feb. 25, 1993.

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  The Case for Linking a Right to Adjustment with the NAFTA

  Robert L. Howse

  This essay argues that the North American Free Trade Agreement (NAFTA) should be accompanied by a right to adjustment for workers. Such a right would entitle workers who are displaced as a consequence of trade liberalization within North America to adjustment assistance from their governments. It would not, however, commit these governments to a particular form or level of assistance. Instead, they would be required to provide sufficient aid to facilitate re-employment of displaced workers under conditions of dignity and without undue hardship on the workers and their families. Governments would be free to choose the most appropriate means to this end, which could include mandatory notice periods for plant closings, training subsidies or programs, income maintenance, job search facilities, counselling, and relocation assistance. Available institutional mechanisms within each country would enforce the right to adjustment, with the possibility of extraordinary appeal to a new trinational dispute settlement mechanism, before which workers and unions would have standing. Among the main reasons for including a right to adjustment in the NAFIA is the opportunity it would offer to address in an appropriate way the inherent connection between adjustment and trade policies. A right to adjustment could exempt genuine adjustment measures (such as retraining subsidies) from retaliatory trade actions, such as countervailing duties, by NAFfA partners. Compliance with the right to adjustment could also become a precondition for any member state being permitted to take safeguard or emergency clause action against imports from another member state. Thus, the reimposition of tariffs or other protectionist actions would become a recourse of last resort, acceptable only where adjustment measures proved insufficient to cope with the dislocation affects from rising imports. Here, it is important to emphasize that, under domestic trade law in each country, a protectionist response is now readily available through courts and tribunals where free trade causes particular harm to domestic firms and their workers. Adjustment assistance for specific groups can only be arranged, however, by petitioning political authorities, a much less direct and uncertain avenue of relief. Creating a right to adjustment assistance would correct this protectionist asymmetry.

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  The Distribution of Benefits from Prepaid Tuition Programs: New Empirical Evidence About the Effects of Program Design on Participant Demographic

  Jeffrey S. Lehman

  The Michigan Education Trust (MET), was the most widely publicized government action in the field of higher education finance during the 1980s. MET allowed parents of young children to purchase contracts that would later pay for tuition at Michigan's public colleges. MET promised to protect parents against the perceived risk that college would become unaffordable by the time their children were ready to enroll. Widely heralded as a bold innovation emulated by other states, MET was considered Governor James Blanchard's preeminent legislative achievement during his two terms in office. Today, the bloom is off the rose. Governor Blanchard is out of office, and MET is in disarray. Concerns about MET's solvency have led the MET board to suspend sales of new prepaid tuition contracts. The new state treasurer describes the program as “a deal that was too good to be true,” and the once-glowing press reviews have turned sour. I have argued elsewhere that students of public policy can learn a great deal from the worst mistake of the MET board. During its first year of operation, the board set prices for MET contracts, and it set them way too low. I believe that this error resulted from the interaction between certain widely prevalent political incentives and the breakdown of the cultural institutions that ordinarily counteract them. Moreover, in the long run this error is likely to redistribute wealth upward in Michigan, assisting wealthy contract holders to the detriment of working- and middleclass taxpayers. In this chapter, however, I shall argue that students of public policy can also learn a great deal from the most admirable action of the MET board. During its third year of operation, the board decided to change the terms on which MET participants could pay for their contracts. The board authorized the sale of contracts under a “monthly purchase/payroll deduction plan,” hereafter referred to as the monthly payment option (MPO). The hope was that families who could not afford to pay the total cost of a MET contract in advance would be able to buy the contracts on the installment plan. This change in policy provides an interesting natural experiment. Do the terms of purchase really affect the income distribution of program participants? Was the state able to induce more lower-income families to participate by (in effect) offering to lend them the purchase price? More generally, is the skewed distribution of participants in prepaid tuition programs primarily a function of credit market failure-the inability of low-income families to borrow against future earnings? This chapter first describes the early history of MET, from Governor Blanchard's initial call for the creation of a “Baccalaureate Education Savings Trust” through the sale of approximately 39,000 contracts in the fall of 1988. It then summarizes a critique of MET that I published in the summer of 1990 and the political response to that critique—in particular, the decision in the fall of 1990 to establish the monthly payment option. Next, it examines data about the distribution of monthly payment option contracts to determine the distributional consequences of the new program. Finally, it offers some general interpretations of these findings and suggests their significance for future policymakers.

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  United States of America

  Andreas F. Lowenfeld and Linda J. Silberman

  In the United States, every judgment of a court of another state is in some sense a ‘foreign judgment’ which cannot be enforced directly but must be made the subject of another action. Under art IV §I of the Constitution, however, plus implementing legislation adopted by the first Congress, the judgments of any court within the United States ‘shall have the same full faith and credit’ given them in every court within the United States as they may have by law or usage in the courts of the state where they are rendered. Though the sources and original intention of the Full Faith and Credit clause and the Act of 1790 are surprisingly unclear, and the defences to actions on judgments were not fully established until the middle of the present century, the tradition and practice of enforcing foreign (sister-state) judgments is by now clear and commonplace. The command of the Constitution does not, of course, apply to foreign-country judgments, but the attitude toward enforcement of judgments rendered by other jurisdictions seems to carry over to foreign-nation judgments as well, thus making the United States—without benefit of any treaties or federal statute—among the most receptive nations with regard to recognition and enforcement of foreign-country judgments. Ordinarily a final judgment issued by a foreign-country court can be recognized without any special proceedings, and can be enforced by a simple action against a judgment debtor, typically by motion for summary judgment in lieu of complaint. United States law makes no distinction between contested judgments and judgments rendered upon default; defences based on the merits of the first judgment are (with minor exceptions) excluded; defences based on the public policy of the forum, while theoretically available, are practically excluded; and even defences going to the jurisdiction of the rendering court are subject to the rules of res judicata, ie the defence is generally not available if the judgment debtor challenged the jurisdiction of the first court before that court and was unsuccessful. Foreign counsel are often surprised to learn that no federal law governs the enforcement of foreign-country judgments, and indeed that even in federal courts state rather than federal law applies to this subject. However, except with respect to certain foreign-country divorce judgments (so-called migratory or ‘suit-case’ divorces), the practice of the fifty states does not vary widely'. That practice is made up in large part of common law decisions of state courts, applicable since 1938 in federal courts as well; twenty-two states have adopted the Uniform Foreign Country Money-Judgments Recognition Act, including California, Illinois, Massachusetts, New York and Texas, but most other states apply the principles of the Uniform Act without having formally adopted it as state law. Moreover, while the drafters of the Uniform Act confined their text to money judgments, the practice extends to other judgments as well. The requirement of reciprocity, though formally accepted by the US Supreme Court in 1895, is no longer of practical importance in most states of the United States. There are several states, however, (eg Texas, Massachusetts and Georgia) which continue to insist upon the requirement. For those foreign countries, such as the Federal Republic of Germany, that require a finding of reciprocity as a condition of recognition of foreign judgments’, it would seem that the judgments of most state and federal courts in the United States (if otherwise entitled to recognition) should be found to qualify, on the basis of the recognition and enforcement practice here summarised, and spelled out in more detail in the following sections.

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  Comments on Calomiris

  Geoffrey P. Miller

  Charles W. Calomiris’ paper, “Regulation, Industrial Structure, and Instability in U.S. Banking: An Historical Perspective,” represents a valuable contribution to the history of American financial institutions. Calomiris focuses specifically on the structural features that have affected the growth and development of the American banking industry over the years. And, although he does not answer all the questions, he at least has made substantial progress. No account of U.S. banking history will be able to ignore Clomiris’ impressive contributions. Although Calomiris focuses on a number of different topics in this paper, his major interest is on the history of branch banking. Drawing on extensive empirical research, Calomiris convincingly argues that banks organized in branch-banking structures have historically tended to be more stable and to experience fewer disruption from runs and panics than unit banks. This is in itself an important finding, both for the light it sheds on the history of the U.S. banking industry and for its implications as regards the present crisis in American banking. Although Calomiris does not emphasize the point, it is possible to extend the trajectory of his findings to reach the inference that the recent problems in U.S. banking may have stemmed, in part, from a banking system that was extremely poorly structure, with more than 10,000 banks – approximately 20,000 in the early 1920s – and many thousands of thrift institutions. The banking crisis of the 1980s, like the banking crisis of the 1930s, can plausibly be characterized as fundamentally a structural crisis: The rash of failures between 1986 and 1991, like the rash of failures between 1929 and 1933, may well have represented a form of consolidation in an industry that was notoriously inefficiently structured. It is probably not a coincidence that our sister nations, such as Canada, Japan, and Germany, all of which have a markedly more centralized banking structure, have not experienced anything like our banking catastrophe of the past few years.

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  The Impact of African Studies on Philosophy

  V. Y. Mudimbe and Kwame Anthony Appiah

  African Studies, contrary to some accounts, is not a separate continent in the world of American higher education. Its intellectual borders touch those of economics, literature, history, philosophy, and art; its history is the story of the world, both ancient and modern. This is the clear conclusion of Africa and the Disciplines, a book that addresses the question: Why should Africa be studied in the American university? This question was put to distinguished scholars in the social sciences and humanities, prominent Africanists who are also leaders in their various disciplines. Their responses make a strong and enlightening case for the importance of research on Africa to the academy.

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  Summary

  Thomas Nagel

  I found this conference very illuminating. I do think that this subject moves more rapidly on the scientific side than it does on the philosophical side. Michael Gazzaniga asked me whether it is really necessary to have a philosophical conference more frequently than every 10 years! Probably not. We are like ageing prize fighters constantly exchanging the same punches. But even that process, given that none of us seems to fall down, may serve some function. This is one of those areas in which the relation between very abstract and philosophical consideration of the subject, and empirical science, has been fruitful for both sides. I am struck by the influence of philosophical controversies over the last 20-25 years on scientific discussions, and vice versa. John Searle says from time to time, ‘I want to get this problem out of philosophy and into science, where it belongs’. My reply would be that in a scientific treatment there is a very important place for philosophical reflection and philosophical disagreement of precisely the kind we have been having. What kind of scientific theory would count as a theory of consciousness will be determined by theoretical considerations that are essentially philosophical. That’s really the nub of the dispute between Dan Dennett and John Searle: what are the adequacy conditions of such a scientific theory. The main question is whether one should be aiming for a theory that contains as primitive terms some variant of the kind of mental concepts we are familiar with, having characteristically linked first- and third-person applications, or whether we should be aiming for a theory which essentially replaces those concepts with a third-person description of the behaviour of those who employ them and to whom they apply, and provides an explanation of all of that. I myself remain convinced that we cannot even talk about consciousness, and therefore cannot have a theory of it, without using concepts that are not just third personal. In general, it makes sense to look for reductionist theories of familiar things, and such theories will not employ all the familiar concepts which we ordinarily use to describe those things. For example, it is true that chairs are composed of atoms. This means you can, in principle, explain the physical properties of any particular chair and what will happen to it under different conditions in terms of physics and chemistry. However, the proposition that chairs are composed of atoms is not itself a proposition of physics, and the concept ‘chair’ will not appear in any of these explanations or theories. Chairs are treated by physics simply as combinations of atomic structures.

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  What is the Mind-body Problem?

  Thomas Nagel

  The mind-body problem exists because we naturally want to include the mental life of conscious organisms in a comprehensive scientific understanding of the world. On the one hand it seems obvious that everything that happens in the mind depends on, or is, something that happens in the brain. On the other hand the defining features of mental states and events, features like their intentionality, their subjectivity and their conscious experiential quality, seem not to be comprehensible simply in terms of the physical operation of the organism. This is not just because we have not yet accumulated enough empirical information: the problem is theoretical. We cannot at present imagine an explanation of colour perception, for example, which would do for that phenomenon what chemistry has done for combustion—an explanation which would tell us in physical terms, and without residue, what the experience of colour perception is. Philosophical analyses of the distinguishing features of the mental that are designed to get us over this hurdle generally involve implausible forms of reductionism, behaviouristic in inspiration. The question is whether there is another way of bringing mental phenomena into a unified conception of objective reality, without relying on a narrow standard of objectivity which excludes everything that makes them interesting.

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  A Model of Optimal Fines for Repeat Offenders

  A. Mitchell Polinsky and Daniel L. Rubinfeld

  This paper analyzes optimal fines in a model in which individuals can commit up to two offenses. The fine for the second offense is allowed to differ from the fine for the first offense. There are four natural cases in the model, defined by assumptions about the gains to individuals from committing the offense. In the case fully analyzed it may be optimal to punish repeat offenders more severely than first-time offenders. In another case, it may be optimal to impose less severe penalties on repeat offenders. And in the two remaining cases, the optimal penalty does not change.

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  Public Choices in Public Higher Education

  John M. Quigley and Daniel L. Rubinfeld

  Public institutions of higher education have grown in prominence in the United States over the past 200 years. By the mid-l980s, total public enrollments were roughly twice the level of private enrollments. Important as they are, these aggregate trends mask the substantial and systematic state-by-state variation in public and private enrollments that is the primary focus of this paper. The outputs associated with public higher education are notoriously difficult to conceptualize and to quantify. We therefore concentrate attention on input measures that can proxy for educational output: enrollments per capita and expenditures per student. To a large extent, current enrollment levels reflect a historical set of decisions by state legislatures concerning the appropriate “supply” of public higher education. But they also depend on the demand for higher education by both residents and nonresidents. In this paper, we relate the 1985 statewide pattern of publicly provided higher education to the political conditions and choices that have confronted legislatures, along with the labor market conditions and other economic forces that affect students’ (and families’) demands for higher education. Section 8.2 provides the conceptual overview. We sketch out some of the alternative political-economic theories that might serve to explain the current pattern of student enrollments. Section 8.3 begins the empirical analysis by describing the statewide public enrollment pattern as it has developed historically and as it relates to other input and output measures (expenditures per pupil and a quality index). In this section, we flesh out the public-choice problem of the legislature which causes states to provide alternative packages of postsecondary education services. Section 8.4 describes the regression analyses that attempt to sort out the effects of legislative supply variables from the important demand-oriented variables. Some brief concluding remarks appear in the final section.