Faculty Chapters

Follow

• 

  Political Philosophy

  Jeremy Waldron

  The term “political philosophy” can be used loosely to cover almost any abstract thought about law, politics, and society, particularly if it addresses normative questions about the way in which political power should be used or the way citizens should behave. Thus, democratic theory, jurisprudence, political morality, applied ethics, social theory, and political economy have all been thought of as parts of political philosophy. A political philosopher might study subjects as diverse as punishment, representation, feminism, private property, judicial review, economic inequality, civil disobedience, rational choice, and the morality of abortion. In these and similar areas, people who think of themselves primarily as philosophers have become immersed in recent times in the study of what we may call “public affairs”, and they have contributed to a large body of literature in which the issues and controversies of public life are debated and discussed.

• 

  ERISA Considerations in Business Change Transactions

  Brookes D. Billman

  Professor Billman describes the relationship of the Employee Retirement Income Security Act of 1974 to the Internal Revenue Code's regulation of “qualified” retirement plans. He points out that ERISA was essentially concerned with ensuring adequate funding of “defined benefit plans,” but that loopholes in the law quickly appeared. Congress responded by enacting amendments in 1986 and 1987: to prohibit “standard” termination or withdrawal unless plan benefits, not merely minimum statutory benefits, are adequately funded, and to restrict “distress” terminations. The author then looks at the implications of ERISA and Code liability for business change transactions, and cautions that both internal employer revamping and sales of assets may involve significant ERISA liabilities for all parties. In contrast, he notes, a mere change in corporate identity or a stock sale in and of itself will not have ERISA implications. Professor Billman explores the use of plan termination as a financing device to obtain recovery of plan assets in excess of adequately funded benefits, including the important question of what interest rate may appropriately be projected. He also questions whether the fiduciary obligations of plan trustees necessarily restrict their use of plan assets to prevent takeovers. The purpose of this chapter is to highlight and analyze selected issues that may arise under ERISA in the course of business change transactions. This chapter examines the basic questions affecting pension plans in business change transactions. As a preliminary matter, some basic definitions should be established and some terminology clarified. First, ERISA I means different things depending upon the context. It is both (1) a statute that significantly amended the Internal Revenue Code of 1954 in the qualified retirement plan context and (2) a separate statute beginning at 29 United States Code section 1000 (the so-called “labor provisions” of ERISA). In this chapter, ERISA will be used when referring to 29 United States Code, and the Code will be used when referring to the Internal Revenue Code provisions. Second, “pension plan” is a phrase with varying meanings under ERISA and the Code. When used herein, pension plan refers to an “employee pension benefit plan” as defined in section 3(2) of ERISA-any plan, fund, or program that provides for the payment of retirement income to employees or for the deferral of income by employees to a date beyond the termination of employment. “Defined benefit plan" and "defined contribution plan” will be used to describe the two major categories of qualified pension plans under the Code. One cannot examine the effect of ERISA upon business change transactions without considering various tax issues that may arise in those transactions. The reasons for this are quite straightforward. First, ERISA and the Code are an interrelated, integrated pair of statutes. Legal issues affecting pension plans arise under both statutes. Second, for most pension plans, the tax law plays a critical role in their existence and operation. Code sections 401-418E contain a series of rules establishing a special “qualified” status for pension plans. Significant tax benefits for both employers and employees attach to securing this status. Employers will normally not engage in business change transactions without determining whether those transactions will adversely affect these tax benefits. Thus, the following discussion will attempt to integrate important considerations under both the Code and ERISA for pension plans in business change transactions.

• 

  Successorship Obligations

  Samuel Estreicher

  Professor Estreicher compares successorship doctrine with the “single employer,” “alter ego,” and “contract bar” doctrines. He describes successorship in terms of the “Wiley-Bums-Howard Johnson triad,” and concludes .that the basic test for successorship status is “substantial continuity of identity in the business enterprise,” with the most significant factor being the extent to which the predecessor's personnel have been retained in the composition of the new work force. The Supreme Court's decisions in this area thus create powerful incentives on the purchaser's part to refuse to hire the seller's union-represented workers, notwithstanding formal labor law principles which bar antiunion discrimination in hiring. The author considers in detail the seller's obligations under various forms of successorship clauses, and explores the availability of arbitral relief and temporary judicial relief in the nature of “reverse Boys Market injunctions.” . . . The Labor Board's successorship doctrine is of enormous importance in today's world of rapid capital transfers, plant shutdowns, and abrogable collective-bargaining contracts. The following remarks offer not so much a full-scale critical perspective on this area of labor law, but an attempt to identify and assess the key practical issues that confront buyers and sellers of businesses, as well as unions and their members.

• 

  British Criminology Before 1935

  David W. Garland

  A review of the history of British criminology involves an article on each of the following periods: before 1935, 1935-1948, 1948-1960, 1960-1987, and the current state of criminology in Britain. One article covers the contributions of Hermann Mannheim. After an article on methodological developments in criminology, psychological contributions to criminology are reviewed. The impact of feminism on criminology in Britain is explored, as is criminal justice and criminal process. The history of crime in England is traced from 1300 to 1914, and the relationship between British criminology and the state is discussed. The series concludes with an article on radical criminology in Britain as the emergence of a competing paradigm. Thirteen articles on the history of British criminology encompass the history of criminological ideas, the formation of particular emphases, methods, problems, and personal accounts of major phases in the discipline's growth.

• 

  Gag Rules or The Politics of Omission

  Stephen Holmes

  A conversation is invariably shaped by what its participants decide not to say. To avoid destructive conflicts, we suppress controversial themes. In Cambridge, Massachusetts, old friends shun the subject of Israel in order to keep old friendships intact. Burying a divisive issue, of course, can be viewed censoriously—as evasiveness rather than diplomacy. But conflict-shyness is not merely craven: it can serve positive goals. By tying our tongues about a sensitive question, we can secure forms of cooperation and fellowship otherwise beyond reach. Strategic self-censorship occurs in a variety of settings, from inter- national summits to midnight trysts—including perhaps the limiting case of amnesia. In collective life, unmentionables abound. Within every group, speaking about tabooed subjects will provoke general consternation and embarrassment. After all, no one should wash his dirty linen in public. At faculty meetings, even garrulous professors will not prattle interminably about their alcohol problems or marital relations. Such universally appreciated uncommunicativeness can be easily explained. For one thing, no group's information-processing capacity is infinite. People cannot talk about everything at once; life is short; to avoid cognitive overload, different groups focus on different topics at different times. Other reasons for sealing one's lips are less general and more pertinent to democratic theory. Sometimes an issue appears “unspeakable” because open airing would mortally offend prominent individuals or subgroups and permanently injure the cooperative spirit of the organization. Alternatively, a group can utilize its scarce resources more effectively if it dodges an irksome issue. By refraining from opening a can of worms, discussion leaders can prevent its lively contents from absorbing 100% of everyone's attention—at least for the time being. Despite the warnings of popular psychology, in other words, repression can be perfectly healthy.

• 

  Jean Bodin: The Paradox of Sovereignty and the Privatization of Religion

  Stephen Holmes

  Liberal beliefs about the proper relation among law, morality, and religion first acquired distinct contours during the wars of religion that ravaged France between 1562 and 1598. While recent commentators on the state's obligatory “neutrality” toward conflicting moral ideals often refer to this bloodily traumatic period, they usually do so only in passing. We can shed considerable light, however, upon our constitutionally mandated separation of political and religious spheres as well as upon the uneasy relation between law and morals typical of the liberal tradition if we exhume and reexamine one deeply influential argument for religious toleration advanced in late sixteenth-century France.

• 

  Liberal Guilt: Some Theoretical Origins of the Welfare State

  Stephen Holmes

  Is Milton Friedman the legitimate heir of Adam Smith? Did Locke's antagonism to political tyranny imply a repudiation of public provision for the needs of the poor? Does Marshall's famous sequence of legal rights, political rights, and social rights map the smooth unfolding of an initial promise or a step-by-step disavowal of the past? What is the relation between the old Rechtsstaat and the new Sozialstaat, between constitutional rights and welfare rights? These questions are neither uninteresting nor unanswerable. But the point of asking them is not immediately clear. Even if we could announce that public assistance represented a betrayal or a consummation of classical liberal principles, no political consequences would follow, one way or the other. The perpetuation of traditional values may be a sign of heroic tenacity; but it may also be a symptom of moral sclerosis. Some adversaries of the welfare state try to make us feel derelict for having abandoned our noble libertarian heritage. Contrariwise, friends of the welfare state commend us for having thrown off the shameful inheritance of Social Darwinism. Depending on one's perspective, in other words, historical continuity can deserve praise or blame. I stress this admittedly obvious consideration to avoid a misconstrual of my objectives in these remarks. While aiming to highlight the similarities and interconnections between eighteenth-century liberal rights and twentieth-century welfare rights, I remain conscious that such an exercise has limited value. Policy debates, for one thing, cannot be sensibly conducted as legacy disputes. The liberal movement, moreover, was complex and diffuse. It evolved over the course of centuries and assumed different forms in different national contexts. Even when studying a single country during one and the same period, we can only use “liberalism” (which before the nineteenth century is always an anachronism) as an umbrella term covering a variety of political tendencies and outlooks. As a result, diverse historical perspectives on liberal thought remain possible; and they will inevitably yield divergent answers to the continuity question. Furthermore, a similarity or correspondence of beliefs, which is all I shall attempt to document, does not constitute proof of historical continuity. Evidence of transmission and reception would be required to support any kind of stronger claim. Normative continuity, moreover, the bequeathing and inheriting of a system of moral values, even if it could be established, would not provide a causal explanation of the emergence and stabilization of contemporary welfare regimes. General affluence, a dramatic increase in state revenues during wartime, the need to secure political stability in the face of boom-and-slump cycles in the economy, the growing bargaining power of previously disenfranchised groups-these and many other factors played a decisive role in the emergence of contemporary economic rights. Public relief programs have sometimes been embraced by political elites for purely self-interested reasons: because, for example, “Rebellions of the Belly are the worst” or because “poverty in the midst of a generally wealthy society is likely to increase the incidence of crime". Similar considerations were no doubt relevant to the enactment of modern redistributionist legislation. If normative continuity outweighed normative discontinuity, as I think it did, it was only one element among the many that contributed to the rise of the welfare state. The erroneous assumption that classical liberals would have been utterly hostile to transfer programs is such a commonplace, however, that a succinct refutation can still be useful.

• 

  Precommitment and the Paradox of Democracy

  Stephen Holmes

  “II est absurde que la volonte se donne des chaines pour l'avenir.” Rousseau. Laurence Tribe opens his influential treatise on constitutional law with a concise formulation of the countermajoritarian dilemma—the discord between majoritarian politics and constitutionally anchored restraints: “In its most basic form, the question . . . is why a nation that rests legality on the consent of the governed would choose to constitute its political life in terms of commitments to an original agreement . . . deliberately structured so as to be difficult to change.” The underlying problem has been posed in a variety of ways. How can the “consent of the governed” be reconciled with the preempting of subsequent consent by a Constitutional Convention? Why should a constitutional framework, ratified two centuries ago, have such enormous power over our lives today? Why should a minority of our fellow citizens be empowered to prevent amendments to the Constitution? Is judicial review, when based on a superstitious fealty to the intent of the Framers, compatible with popular sovereignty?

• 

  A Federalist Fiscal Constitution for an Imperfect World: Lessons from the United States

  Robert P. Inman and Daniel L. Rubinfeld

  However history assesses the Reagan Presidency, there is little doubt that it has challenged in a central way how we conduct our national fiscal policy. The old axioms of federal spending, tax, and debt policy have each been threatened by at least one Reagan Policy initiative. No less important is the Reagan challenge to our current structure of federal-state-local fiscal relations. While the core reforms of the Reagan New Federalism proposal never quite made it into law, the Reagan budgets have significantly curtailed the levels of federal support for state and local governments. Perhaps most importantly, the Reagan federalism initiatives have forced a serious rethinking of the evolutionary path of our federalist public economy, an evolution that has moved the financial and management responsibility for public goods and services steadily upward to the national level. What was once an interactive network of independent local and state governments has become an interlocking hierarchy of governmental subdivisions financed and managed to an increasing degree from Washington. The Reagan challenge has forced us to ask a fundamental question: Is this the federalist structure we really want? Any clear answer to this question requires a well-articulated view of what a federalist economy can do. In this exploratory essay, there is no reason not to ask for a first-best economy in which all resources are efficiently allocated and fairly distributed. Surprisingly, perhaps, it is not difficult to imagine a federalist public economy that can achieve these dual objectives. It is called a Tiebout-Coase public economy, in honor of the two men who first clarified its basic structure. The second section summarizes this underlying structure and describes the resulting federalist economy. The demands of the Tiebout-Coase public economy, however, are severe. In addition to the requirement that there be a perfectly competitive supply of all factors of production including entrepreneurs who provide public services, the Tiebout-Coase economy needs fully informed and mobile consumers capable of negotiating all trades of mutual advantage. Anything less than full information and perfect contracting undoes the promises of Tiebout and Coase. Yet imperfect information and imperfect contracting are realities of economic life. The Tiebout-Coase public economy is an enlightening image of the first best, but it should not become the statndard against which we judge the performance of real federalist economies with their inherent and unavoidable imperfections. Our standards should be derived within the bounds impose by real economies. The third section conjectures (it’s too early for theorems) what these standards might be, based on an understanding of the structure of one real economy—the United States today. The last section puts in perspective the present U.S. federalist economy and recent reform proposals. A few directions for reform are suggested, several of which look beyond the legislature to the possibility of judicial, executive, and constitutional implementation.

• 

  The Foundations of Impartiality

  Thomas Nagel

  Can an ethical theory be too successful? If it proposes a foundation for moral argument that lies beyond the reach of moral disagreement, it may leave the existence and intractability of actual moral disagreements unexplained. If it tries to appeal only to facts outside morality which all parties must admit, then the most fundamental disagreements are likely to resurface, either in the interpretation of what has been proved or in dispute over moral assumptions hidden in the premisses. I believe that Hare's attempt to ground morality in the logic of the moral concepts runs into this problem. It is true that when people disagree about what is right and wrong, and how they should live, they must mean the same thing by the terms they use to express their differences. But this common ground does not by itself provide the materials needed to settle their disagreements, and the attempt to show that it does inevitably introduces morally controversial elements into the interpretation of the alleged common ground. This happens elsewhere in philosophy, when one or another view is criticized for violating the logic of the terms in which it is stated. The mistake, if there is one, is usually located in another place. It may happen sometimes, in the case of specialized, quasi-legalistic disputes among members of the same moral sect, that the method of settling a moral disagreement can be extracted from the meanings of the terms that parties to the disagreement must use in common. But I believe this is not possible with respect to those large-scale moral issues that are of greatest philosophical interest. There we must look beyond the terminology, and we may find that no shared method is available at all that is not itself the subject of moral controversy. The best we can hope for is to discover arguments and counter-arguments that display the basis of disagreement more clearly within the confines of morality, and perhaps to identify some contributing non-moral differences. This puts us in a better position to continue the search for a method on which wider agreement can be secured, as we gradually emerge from the moral bronze age. The theory developed in Moral Thinking holds that the possible content of a morality is more narrowly restricted by the logic of moral language than Hare had thought it was at the time of The Language of Morals. That is because he includes in his later account of what moral judgements mean an interpretation of their universality which amounts to a strong substantive requirement of impartiality among all persons. It is this interpretation that I want to discuss, concentrating mostly on its relation to the logic of moral language, rather than on its independent plausibility as a moral assumption. Hare believes that actual moral disagreements, if they are not based on confusion, can best be accounted for as differences over what follows from such a requirement, in conjunction with the facts—differences due partly to variation in the accuracy of reasoning and partly to variation in belief about the relevant non-moral facts. But I believe that some disagreements are at the level of the principle itself—disagreements within morality about the stringency and proper interpretation of moral impartiality.

• 

  An Overview of the Bill of Rights

  Burt Neuborne

  Since even democratically elected governments are capable of violating individual rights, the founding generation insisted that the original text of the Constitution be expanded to include a catalogue of immutable rights that no government could ever ignore. The result was the adoption in 1791 of the first ten amendments to the Constitution-the Bill of Rights-designed to preserve religious liberty; free speech; personal privacy; private property; and procedural fairness against the power of the democratic majority. In the aftermath of a tragic Civil War (1861-1865), fought primarily over slavery, the Constitution was further amended by adding what many have called a second Bill of Rights—the Thirteenth, Fourteenth and Fifteenth amendments—designed to protect equality by outlawing slavery, guaranteeing equal protection of the laws, and assuring the right to vote to members of racial minorities. The protections of the Bill of Rights were expanded yet a third time in the twentieth century when the right to vote was assured to women by the Nineteenth Amendment (1919) and to youths 18 and over by the Twenty-fifth (1970). Broad as the protections of the modern Bill of Rights are, however, they are not boundless. Most importantly, the Bill of Rights, standing alone, does not protect individuals against misuse of private power. With the important exception of the prohibition against slavery in the Thirteenth amendment, the provisions of the Bill of Rights protect the individual against the government, not against other individuals. Nor does the Bill of Rights guarantee economic or social rights. The document concentrates, instead, on preserving the personal and political rights needed for the proper functioning of a tolerant political democracy, leaving the economic and social arena to the free play of democratic judgment. The Bill of Rights does not simply catalogue rights, trusting the legislature, the executive, and the electorate to respect them. Rather, the Constitution establishes an institutional enforcement mechanism—judicial review—that vests life-tenured, politically-insulated federal judges (culminating in the Supreme Court) with the power and duty to enforce the Bill of Rights against all government officials-federal, state and local. State judges, many of whom are elected, also measure state and local government action against the guarantees of the Bill of Rights. The result is a nationwide network of judges—state and federal; elected and appointed—engaged in constant surveillance of the activities of the governing majority to assure that the individual rights described in the Bill of Rights are respected in everyday life. Since the Constitution, including the Bill of Rights, necessarily speaks at a high level of abstraction, its text is often ambiguous. Reasonable people can, and often do, disagree vigorously about its precise meaning. American judges seek to resolve such disagreements in the course of deciding actual ‘cases and controversies’ brought by aggrieved individuals claiming that a particular exercise of government power violates the Bill of Rights. It is in the process of deciding such disputes that the American judiciary draws the critical line between the domain of the individual and the power of the state. In deciding a constitutional case, an American judge reads the Bill of Rights with the help of judicial precedents-written opinions issued by judges in earlier constitutional cases. Applying the rule of stare decisis (respect for precedent), a judge seeks to decide a contemporary constitutional case in a way that is logically consistent with the most analogous past precedents. While there are ‘easy’ constitutional cases, where a consensus reading of judicial precedent and constitutional text render one outcome clearly preferable, ‘hard’ constitutional cases often force judges to choose among several plausible readings of precedent and / or text. Much of the intellectual richness of American constitutional law flows from disagreements over the proper approach to such ‘hard’ cases. Some judges and academics argue that a literal reading of the constitutional text, using dictionary meaning as a guide, is the most appropriate way to decide a constitutional case. Others argue that the original intentions of the framers should be a primary source of guidance. Yet others argue that a search for morally superior principles embedded in the text and past judicial precedent should guide a judge. And some argue that ambiguities should be resolved in accordance with the felt necessities of the age. The precise meaning of the Bill of Rights is, therefore, the result of a three-cornered partnership stretching back more than 200 years uniting the text written by the founding generation, the interpretive efforts of generations of judges past, and an evolving reading of the constitutional text by the current generation of American judges. The original Bill of Rights (the first ten amendments) codifies thirty-one ideas. The first six ideas describe an ideal commonwealth of respect for individual conscience, mutual toleration and democratic self-government. The next twenty-three ideas, spread over the Second through Eighth Amendments, respond to a series of threats to the First Amendment's ideal commonwealth, providing structural antidotes for each perceived danger. The last two ideas, codified in the Ninth and Tenth Amendments, guide future readers about how to resolve ambiguities inherent in any effort to use words to describe rights and define powers.

• 

  The Origin of Rights: Constitutionalism, the Stork and the Democratic Dilemma

  Burt Neuborne

  Parents often respond in two ways to precocious questions from children about their origins. Either they avoid the issue entirely, assuring the questioner that he or she will understand some day; or they invent a legendary explanation. I'm neither a child psychologist nor a legal philosopher; but, as a parent who has blundered through the origins issue, I confess to a sense of déjà vu when trying to think about where individual rights in a political democracy come from. I have a strong sense of wonder at the miracle of their existence; but find it difficult to explain the process of creation. Most attempts to probe the paradox of judicially enforceable individual rights (as opposed to what I will call “oughts”) in a democracy seem to share the same difficulty. Either they finesse the origins issue completely by asserting the self-evident existence of individual rights as an inherent result of the nature of things, or they invent legends - some of the most beautiful and ennobling legends in our culture—to explain the miracle. I propose to sketch the roots of the dilemma by summarizing the work of others who have cogently described the tension between a genuine commitment to majority rule and a genuine insistence that areas exist—we call them rights—that are off-limits to the will of the majority, even when that will is expressed with scrupulous fairness. Somewhat immodestly, I will then explain why I fear that the existing attempts to describe the origins of individual rights fall into one of the two “parental” categories—(1) assertions that questions about origins don't really matter since rights exist in the nature of things; or (2) explanations of rights that share as a common theme the invention of a legendary skyhook from which to suspend the rights. Finally, I shall conclude by suggesting that rights may be thought of, not only as free-standing substantive phenomena, but as the real-world consequences of a complex institutional interplay that acts to deflect error—both legally and factually—in favor of certain values by vesting power in an independent and insulated arbiter, often called a judge, whose duty it is to assure that the requisite level of error deflection has been applied by a democratic decision-making body when it decides to trench upon the value. So described, the process of defining and applying legal rights in a democracy bears a close resemblance to another significant check on popular decision-making, the use of sophisticated error deflection mechanisms together with judicially administered checks to impose a degree of control over the jury's power to find adjudicative facts, especially in a criminal case. Briefly—and simplistically—put, I believe, first, that we temper the jury's power to find adjudicative facts with a set of judicially enforced error-deflection mechanisms and control techniques that insulate certain values; and second, that a comparable error-deflection process operates to check the democratic power to find legislative facts and enact legal rules in derogation of significant values. It is in the breathing space created by that complex institutional interplay that I find the origins of rights.

• 

  Settlements in Private Antitrust Litigation

  Jeffrey M. Perloff and Daniel L. Rubinfeld

  In this chapter a simple theory of settlement behavior is used to analyze the data from the Georgetown project on private antitrust litigation. The empirical version of the model is used to simulate the effect on settlements of a reduction in the damage multiplier from its current level of three. The simulations indicate that reducing the damages multiplier in antitrust cases could dramatically lower the settlement rate as well as affect the propensity of plaintiffs to bring suits and to win suits that go to trial. In recent years there has been substantial attention paid by lawyers, politicians, and academics to the volume and form of private antitrust litigation. Treble damages has been a focal point because there has been serious concern as to whether the benefits of discouraging inappropriate business behavior outweigh the costs of the litigation process. Public discussion about the costs of litigation often focuses on the cost of trial even though a substantial portion of cases end without a court trial. Most of the academic literature on antitrust deterrence and litigation has also generally ignored settlement as well—at least as far as questions of optimal damages and choice of damage multiplier are concerned. Rather, the literature has focused primarily on the deterrence associated with the payment of compensatory damages by a defendant when a case is lost. By building on recent theoretical work on the economics of the litigation process and on data from the Georgetown project, this chapter expands current knowledge about antitrust settlements. Section 4.2 provides a nontechnical description of a framework for describing and evaluating the antitrust litigation process. Litigation consists of three interdependent strands: first, the decision by the plaintiff whether to file suit; second, the decisions by plaintiff and defendant whether to settle; and third, the decisions by both parties as to what type of effort to put forth during the trial. The process is inherently interdependent because the decision to sue depends on one’s expectations as to the likelihood of settlement and trial and on the gains or losses associated with each. Likewise, expectations concerning the effort to be put forth at trial affect the probability of litigation and settlement. Thus, while the second strand of the litigation process (settlement) is emphasized, it is essential that the analysis take into account the relationship between settlements and the decision to bring suit and to expend effort at trial. In appendix A the three strands of the litigation process are examined in more detail. In section 4.3 the empirical analysis is presented. Settlement rates are shown to vary systematically with the nature of the case and the stakes involved. For some policy purposes it is important to look at conditional settlement rates – how settlement rates vary when one variable of interest changes while other variables are held fixed. Therefore we examine conditional settlement rates, using a statistical model to evaluate the probability that cases settle. We also simulate the effects of a change in the damage multiplier on the settlement rate. In appendix B the process of simulation is described in greater detail. Section 4.4 contains some brief concluding remarks.

• 

  Prescriptivism, Constructivism, and Rights

  David A. J. Richards

  Largely under the inspiration of R. M. Hare, contemporary moral philosophy insists on the profound unity of metaethical and substantive moral inquiries. Our conception of how to test and assess an abstract metaethical theory of what ethical claims are and mean is, as Hare taught us it must be, linked to the way in which the metaethical theory informs critical understanding of substantive normative principles and their applications both to easy and hard cases. Thus, Hare has taught us to be sceptical of familiar forms of intuitionism, not only because of their questionable epistemic and ontological commitments, but, more profoundly, because they rendered mysteriously inexplicable how and why moral predicates connect both to the world and to the moral psychology of the persons who use them. We have justly come to expect more from moral theory than we previously did, rediscovering the ancient wisdom of moral philosophy as, at once, integrally theory and practice. The measure of R. M. Hare's achievement is that he has made possible this rediscovery, and given us one well-wrought exemplar of how to relive this ancient wisdom which places moral philosophy at the core of humane and civilizing learning. The best way to pay tribute to Hare's achievement is, in my judgement, critically to assess it from within the terms of discourse he made possible: viz., does the view more powerfully illuminate the linkages between its metaethical and normative components than other perspectives? Hare's most recent book is a naturally provocative stimulus to this style of assessment for two good reasons. First, Hare here elaborates his familiar metaethical position as one part of a two-stage or –level account of moral thinking. The first stage (combining the metaethics of universal prescriptivism and the normative ethics of utilitarianism) is the stage of the critical moral thinking of those with the time, inclination, and talent freshly to assess all moral issues in a systematically philosophical way. The second stage (ordinary, uncritical moral thought) is one in which people lack the luxury of philosophical reflection and must do their moral best to live a good life in accord with those lower-order practical maxims, norms, and rules which, when generally accepted and acted on, best realize what the critical morality of the previous stage would require. Second, Hare deploys this two-stage theory of moral thinking in a quite clear-headed and argued defence of utilitarianism against a range of arguments which have led many good philosophers to suppose that utilitarianism fails to give appropriate weight to some of our central judgements of critical morality (for example, distributive constraints on utilitarian aggregation, or the muscularity of arguments of rights as trumps over utilitarian arguments of policy). Hare argues that the familiar arguments against utilitarianism erroneously confuse good arguments of the uncritical stage of ordinary moral thinking with good arguments of the critical stage. Properly understood, the soundest metaethical theory (universal prescriptivism) justifies preference-utilitarianism as the best substantive theory of critical morality. Critical morality, thus understood, itself justifies various rules, maxims, and norms of ordinary moral thinking (including distributive or rights-based constraints on utilitarian aggregation), and thus the appeal to such constraints confuses ordinary with critical moral thinking. In support of this claim, Hare makes two points: first, familiar forms of these anti-utilitarian arguments appeal, for their plausibility, to unreal factual situations, precisely those with which ordinary moral thinking of the second stage has not to deal; and second, these anti-utilitarian arguments are themselves made in a style of intuitionist or, more broadly, intuitive moral argument which we have good reason now to distrust, as I earlier noted, in the absence of any systematic philosophical or explanatory account which connects these intuitions either to the world or to the moral psychology of persons. In Moral Thinking, the appeal to intuition is an expression of philosophical bad faith, a failure to take seriously both the theoretical and practical mission of moral philosophy as an essential tool of critical moral thinking. For Hare, such intuitive reasoning is an expression of theoretical failure, a kind of contemptible defence against probing more deeply into the metaethical foundation of ethical thought and the way it structures substantive moral principles. Utilitarianism is, on this view, the better critical morality because it is the fuller expression of this more profoundly elaborated kind of philosophical reason. In contrast, the intuitive reasoning of its critics appears philosophically shallow, superficial, undemanding, and, of course, question-begging. Hare's challenge to the critics of utilitarianism can, I believe, be met and on terms not fairly regarded as improperly intuitionistic or intuitive. His metaethical theory of critical moral thinking does not, I believe, give the best, fairest, or most natural expression to his own internal ideals of critical thought or his general constructivist approach, and is not naturally associated with the substantive morality of utilitarianism in any of its forms. On the contrary, a metaethical perspective, more fully expressive of the internal ideals of critical moral thought, yields principles of substantive critical morality which precisely constrain the morally permissible scope of utilitarian aggregation in ways that critics of utilitarianism have justly urged. Accordingly, the claims of these critics do not draw their plausibility from a conflation of ordinary and critical moral discourse; these critics precisely identify anti-utilitarian constraints internal to critical morality itself. Hare's two arguments against these critics of utilitarianism are, on examination, unconvincing.

• 

  Religion, Public Morality, and Constitutional Law

  David A. J. Richards

  The proper balance between moral pluralism and community is, I believe, a pervasive interpretive issue in American constitutional law in the constitutional jurisprudence of state neutrality required by the religion clauses, free speech, and constitutional privacy. State abridgements of religious liberty, for example, are justifiable, if at all, only on a strong showing of neutral state purposes. In a recent book, Toleration and the Constitution, I develop a general position on the role of history, interpretive conventions, and political theory in constitutional interpretation in general and try to show the interpretive fertility of this approach in terms of a unified theory of the value of constitutional neutrality pervasive in the interpretation of the religion clauses, free speech, and constitutional privacy. My analysis here elaborates an aspect of that argument, namely, how interpretations of religion-clause neutrality, shifting over time, can be plausibly understood in terms of an approach to constitutional interpretation that takes seriously the distinctive role of a certain kind of moral and political theory in making the best interpretive sense of our history and our changing interpretive conventions. On that basis, I make some correlative suggestions about how to understand comparable shifts in the interpretation of neutrality argument fundamental to the modern law of free speech and constitutional privacy. My larger theme is that the distinctively American constitutional commitment to liberties of religion, speech, and privacy self-consciously embodies an associated theory of constraints on state power that radically departs from traditional conceptions of enforceable public morality.

• 

  Union Directors and Fiduciary Duties under State Corporate Law

  Helen S. Scott

  Recent heightened takeover activity has brought into sharp focus, for courts and corporations, the question of what fiduciary obligations are owed by corporate directors. At the same time unions, for a variety of reasons, have become involved with placing representatives on corporate boards. Professor Scott observes that the judicial decisions tend to emphasize the duty of the directors to the shareholders, and that this view poses substantial conflict-of-interest problems for directors who appear to be serving “other” interests, such as those of labor. The very fact of union representation on a board may trigger a special duty of care on the part of the other directors. The author concludes that, on a case-by-case basis, pitfalls can probably be minimized, if not avoided entirely, by precautions such as disclosure and abstention, but she is less certain that legal risks can be completely eliminated without legislative change. . . . Placing a representative of labor on the board of a public corporation is not a new idea, but it nonetheless is an idea that continues to raise difficult legal questions concerning the potential for conflicts of interest. At first glance, the phenomenon may seem to be no more than an appropriate advance in the trend toward increased employee participation in the corporation through the formation of labor-management committees and the creation of employee stock ownership plans. As the legal obligations of corporate directors are spelled out, however, the concept of direct labor representation on the board of a public corporation presents deeper and more troublesome problems, for the shareholder directors as well as the union directors. For the union director, the conflict arises because in pursuing the union's objectives, he is representing a constituency that may be seeking something other than the maximization of the value of the firm's shares. Even where stock is owned by employees, directly or indirectly, the same potential conflict of interest exists. The fact that the employees are also shareholders does not alter the labor director's dilemma, for his behavior will still be measured against the traditional corporate law standard of the welfare of the shareholders as a whole. Recent developments are bringing these issues into sharper focus. First, we now have experience, albeit limited, with union directors in major public corporations. The most celebrated example in this country came about in 1980 with the election of then United Auto Workers President Douglas Fraser to the board of directors of Chrysler Corporation. More recently, several labor representatives were elected to the board of directors of Eastern Air Lines. Second, over the last year or two, influential courts have made major statements on the content of the fiduciary duties of directors under state corporate law. Much of the action in corporate law over the last few years has been the result of increased takeover activity. Takeovers provide dramatic factual settings in which to assess the performance of directors. The prevalence and sophistication of the defensive tactics used by corporations that are targets of takeover attempts have forced courts to face, head on, questions about the scope of fiduciary duties. In the process, the courts have developed new or refined tests for the duty of loyalty, and they have invoked the duty of care to closely scrutinize the actions of corporate management. As a result, even when viewed solely from the perspective of corporate fiduciary analysis, the role of the union director presents a dilemma. Under corporate law, a director owes a duty of loyalty to the corporation, which may make it necessary for him to abstain from certain decisions, to absent himself from certain meetings, or to refrain from receiving certain information in order to avoid tainting a board decision with a disabling conflict of interest. On the other hand, he cannot constantly decline to perform his directorial duties by reason of conflicting interests because he is also under a duty of care which requires him to keep informed, to participate in board deliberations, and to engage in active decision making on behalf of the corporation.

• 

  Of Walls, Gardens, Wilderness, and Original Intent: Religion and the First Amendment

  John E. Sexton

  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This constitutional law of church and state is at an impasse. For four decades, the Supreme Court has struggled to articulate a coherent interpretation of the religion clauses of the First Amendment. Yet today the enterprise has stalled, with the justices sharply divided over the meaning of the clauses—and with some justices apparently even willing to discard previous doctrine in favor of new approaches. At the same time, significant groups who never were happy with the Court’s church-state decisions have mobilized a vigorous assault—often with the assistance of the Reagan administration—on the intellectual roots of those decisions and the doctrines they produced. The present impasse has many causes, but one undoubtedly is the selective and self-contradictory use of historical evidence by advocates on both sides. In no area of American Constitutional law have judges and scholar more consistently resorted to historical materials as the foundation of their analytical structures than in the church-state area. Yet, to date, they generally have used these materials in a way that has obscured the meaning of the First Amendment’s provisions on religion. In this essay, I describe the traditional focus of judicial and scholarly commentary on the meaning of the religion clauses. After identifying the two major competing interpretive positions and the standoff now existing between them, I demonstrate how each major interpretive camp is, in its own way, guilty of doing what others have called “lawyers’ legal history”—a phrase describing the advocate’s tendency to view historical evidence solely by reference to how it affects his or her position, a tendency that encourages the use of nonhistorical or even antihistorical criteria to select and analyze historical data. My principal aim, however, is to expose a fundamental flaw in the major premise of both major interpretive camps: limiting the historical inquiry to what I call the “Period of Formulation” (the fifteen years between the adoption of the Virginia Declaration of Rights in 1776 and the ratification of the federal Bill of Rights in 1791). By so limiting their inquiry, both camps are guilty of doing what I call “freeze-frame history” – the tendency, in examining the history of a constitutional provision (here, the religion clauses), to neglect the developing understanding of the provision throughout the constitutional era, during what I call the “Period of Elaboration.” My thesis is that any valid interpretation of the religion clauses must address not only the history that preceded and surrounded their adoption but also the history that followed it, that unfolded as the life of the nation and its law was shaped or (just as important) left untouched by the constitutional provisions. Thus, as we enlist history in the enterprise of constitutional interpretation, we must both cultivate a sense of the complexity and ambiguity of the historical record in the Period of Formulation and honor the essential character of history as a chronicle of change and development during the Period of Elaboration.

• 

  Residential Choice and the Demand for Public Education: Estimation Using Survey Data

  Perry Shapiro, Judith Roberts, and Daniel L. Rubinfeld

  The demand for publicly supported primary and secondary education has received the attention of economists for a long period of time. Yet only recently in the work of Gramlich and Rubinfeld (1982) and Bergstrom, Rubinfeld and Shapiro (1982) have individual survey responses (for a sample of Michigan citizens) been used to expand the scope of that study. This paper provides an overview of the econometric issues involved in the survey approach, and an expanded discussion of the relationship between community choice and the demand for local publicly supported education. Most studies of the demand for public goods use aggregated data (school district, community, etc.) and rely heavily on the assumptions of the median voter model. Following the example set by Bergstrom and Goodman (1973) and Borcherding and Deacon (1972), the analyses presume that community public expenditures are at the level demanded by the median voter, usually the “individual” with median income living in a median-valued house. If a restrictive set of distributional conditions are met, a regression of actual expenditure levels on income, tax price and other sociodemographic variables generates estimates of the parameters of the demand function. Highlighted by a recent paper by Goldstein and Pauly (1981), the median voter papers have come under attack. Goldstein and Pauly have shown that the median voter model will yield biased parameter estimates if individuals sort themselves into communities in part on the basis of their public goods preferences. Although the strength of the influence of public services on migration decisions is unknown, environmental factors are thought to play some part in residential choice. The survey approach offers an alternative which avoids the median voter assumption and which can account econometrically for the sorting of individuals into communities. The approach requires household interview data such as those obtained from the 1978 survey of Michigan residents and used in the papers by Gramlich, Rubinfeld and Bergstrom, Rubinfeld and Shapiro. The survey provides two distinct types of information, each of which can improve the prospects for estimating demand parameters. The first type is the detailed description of the individual, which in the survey approach can be distinguished from the average characteristics of the community or school district in which the individual resides. The second type is the individual's attitude towards public spending, which allows individual demands to be distinguished form average community demands. Each type of information can be used to generate alternative estimates of the demand for publicly supported education. The first alternative analyses the demand for publicly supported education as one would a private market good, but uses the detailed survey-based information describing individual characteristics. The survey tells each respondent's school district, from which the level of per-pupil expenditure on public education can be obtained. A regression of per-pupil public expenditures on personal and community characteristics yields an estimated demand function. In this paper, the results obtained from such a regression are reported solely for comparison purposes since the parameter estimates are subject to two sources of bias. The first arises because individuals may not consume the level of public spending on education that exactly equals their quantity demanded. The second difficulty arises because the actual public expenditure on education and the tax-price that individuals pay for publicly supported education may be jointly determined random variables. Failure to account for this joint determination will lead to simultaneous equations bias. The second alternative approach to demand estimation takes advantage of opinions that were obtained during the survey. Respondents were asked whether they wanted more, the same or less spending on publicly supported education after being made aware of the tax consequences of their actions. A model can then be developed in which the responses depended on the underlying personal demand (a latent variable). Probit and/or logit estimation can be used to estimate this model as reported in Bergstrom, Rubinfeld and Shapiro (1982), hereafter BRS. Since the publication of that paper we have become convinced that the probit estimators may be subject to a set of problems similar to the regression approach. Elsewhere we have shown that if preferences for education play a part in community choice, the discrete variable estimation of BRS can yield inconsistent parameter estimates. This “selectivity” bias has been studied extensively by Heckman (1979), Amemiya (1978), and others. Heckman's technique for correcting for selectivity involves the calculation of a “Mills ratio” reflecting an expected probability of selection from a probit estimation of discrete selection alternatives. This ratio is then used as an added explanatory variable in a regression with a continuous dependent variable. For example, a wage rate regression might be adjusted for selection bias relating to the choice of whether to work or not. Our approach, and also described independently by Rivers and Voung (1985), reverses the Heckman procedure. First, the residual from a regression using the continuous dependent variable (in our case actual public expenditure) and a number of explanatory variables is calculated. The residual is then used in a probit estimation of the probability of the more, same, less responses to obtain information about the latent desired demand variable. The resulting estimators are consistent and efficient under the null hypothesis of no bias. It is therefore possible to use asymptotic t-tests and likelihood ratio values to test tor selectivity effects. This paper describes one aspect of the [Rubinfeld, Shapiro and Roberts] approach which allows for both selectivity and simultaneous equation bias. The residuals from a reduced form simultaneous equation model of expenditure and tax price are included as variables in a probit equation of the more, less, same response probabilities. The resulting estimators are consistent and efficient under the null hypothesis of no selectivity or simultaneity effects. For reasonable specifications the resulting hypothesis tests reject the null hypothesis. The estimates of the selectivity and simultaneity parameters allow us to calculate the bias associated with the simple regression estimators of demand. When the regression parameters are corrected for bias, the corrected values are remarkably similar to the corrected probit values.

• 

  Ethical Constraints: A Legal Perspective

  Linda J. Silberman

  Although divorce is essentially a matter of personal choice, its emotional aspects are necessarily entwined with legal dynamics, making decisions about divorce a matter of both the heart and the law. Consequently, feelings become facts that must be accommodated in the divorce process in order to reach a viable lasting result. Divorce mediation, an alternative to traditional judicial intervention and third-party decision making, facilitates private negotiation and takes into account emotional as well as legal dimensions of marital dissolution. This process empowers divorcing couples to be actively involved in making the choices that will affect their lives for years to come. The divorce mediator acts as a neutral party who promotes decision making with the family and helps divorcing couples to develop their own parental, financial, and property arrangements. Because divorce mediation views divorce as a multidimensional process that involves both legal and psychological matters, it has attracted professionals from both fields who wish to facilitate a less adversarial approach to the dissolution of a marriage. DIVORCE MEDIATION: THEORY AND PRACTICE fills the currently unmet need for a comprehensive treatment of this burgeoning field. Editors Folberg and Milne, both nationally recognized authorities, have compiled an interdisciplinary state-of-the-art work on divorce resolution. Leading practitioners have contributed chapters which define the theory of divorce mediation, and outline techniques and strategies, as well as ethical considerations and constraints, standards of practice, and policy issues. Current results and forthcoming research findings on such important and controversial matters such as mediation's role in domestic violence disputes are also included. The volume opens with a lucid discussion of theory and practice, the nature of divorce disputes, and methods for achieving settlements. It goes on to offer a detailed overview of the psychological and legal dimensions to be considered. Next, organizational settings in which divorce mediation occurs, namely courts-of-law, private practice, agencies, and organizations are discussed. The implications of divorce mediation for such complex areas of dispute as child custody and financial agreements are vividly conveyed. The process of engaging couples in constructive communication and reducing irrationality is fully explored in the chapters on power balancing, communication strategies, and techniques to break impasses. Legal and ethical issues discussed include liability of divorce mediators, confidentiality and privilege, and standards of practice. The book closes with comprehensive coverage of research results, a longitudinal comparison of mediated versus adversarial divorce, and an in-depth descriptive analysis of common divorce mediation behaviors. This groundbreaking volume brings together a wide range of noted practitioners and researchers in this dynamic discipline to produce the singular interdisciplinary, comprehensive work on this subject to date. DIVORCE MEDIATION: THEORY AND PRACTICE will be an indispensable tool for mediators, therapists, social workers, lawyers, educators and other dispute resolution professionals. It will be of interest to anyone concerned with empowering couples to determine their own mutual and individual responsibilities, and rendering the process of marriage dissolution more cooperative and humane.

• 

  Regulation and the Crisis of Legalization in the United States

  Richard B. Stewart

  This paper examines the current debate in the United States over the use of administrative regulation and alternative instruments to achieve economic objectives, and the relation between regulation and legalisation. It will consider the reasons why administrative regulation has been the dominant instrument and administrative rulemaking the dominant legal measure for implementing economic policy; the choices made among various types of regulatory instruments; the role of administrative regulatory controversies in the development of administrative law and the crisis of legalisation in the U.S.; and current movements toward deregulation and use of alternative instruments in response to this crisis. Such a paper will necessarily be summary and impressionistic. Unfortunately, there is not available a standardised inventory of U. S. instruments and measures in energy and manpower policy comparable to that prepared for this project on selected European nations. This paper accordingly cannot directly compare U. S. experience with the European experience, insightfully analysed by Hans Jarass. It offers more general hypotheses and observations, some drawn from the U. S. experience in energy policy, in the hope that they will be of comparative interest. During the period 1965-1980 there was a very large increase in the number, scope, and intensity of economic policy instruments deployed by the U. S. government in response to political demands for new economic and social programmes. This growth was especially pronounced in administrative regulatory programmes. Congress during the 1960-1980 period doubled the number of major federal regulatory programmes, creating by statute some thirty new programmes. The characteristic measure used to implement these programmes consisted of administrative regulations adopted by federal agencies through rulemaking. The number of pages in the Federal Register, where such regulations are published, increased from 14,000 pages in 1960 to over 87,000 pages in 1980. These regulations sought to impose uniform and often rigid requirements on a vast, diverse, and dynamic nation. Centralised controls were imposed not only on private business activity but also on the practices of and services provided by state and local governments and universities, hospitals, and other non-profit organisa-tions. Beginning about 1975, strong adverse reactions to these developments appeared, culminating in President Reagan's election in 1980. Federal administrative regulatory programmes were condemned as excessively centralised, overly uniform and rigid, unduly costly and burdensome, and destructive of liberty, diversity, and initiative. One can thus speak of a crisis of regulation. The growth of administrative regulation was associated with a sharp increase in litigation. The new regulations were generated through complex rulemaking proceedings lasting several years, followed in many instances by years of litigation in the federal courts and remands for still further agency proceedings. Firms seeking to market new products or construct new facilities would encounter a maze of regulatory requirements and licensing proceedings. The delay, expense, constraints, inconsistencies, burdens, and uncertainties generated by adversary legal proceedings led to sharp criticism of the legal system which had developed in order to control administrative regulation. Thus a crisis of legalism became associated with the crisis of regulation, merging into a crisis of legalisation. This paper considers the reasons why this crisis arose and the solutions to it that have been proposed. There has during the past fifteen years been a tremendous increase in academic studies of regulation in the U. S., not only by legal scholars but also by economists, political scientists, policy analysts, and historians. This paper will provide a highly selective overview of what we do and do not know, giving some examples from energy policy as a case in point. (It will, for the sake of economy, deal only with the federal government.) The paper will then examine the current political debate over regulation and economic policy. President Reagan has effectively exploited popular dissatisfaction with administrative overregulation and legalisation to initiate a far-reaching but highly incomplete effort to relax or eliminate regulatory requirements. Some critics of this effort advocate “reregulation”: reinstatement, expansion, and strengthening of administrative regulatory programmes. Others, while believing that deregulation is appropriate in some sectors, assert that where government intervention is needed it should take the form of decentralised market-type incentives. Still others believe that the entire system of economic policies must be coordinated and rationalised through a new "industrial policy". Still others advocate radical political and economic decentralisation. Each of these alternatives responds to the crisis of legalisation.

• 

  Locke, Toleration and the Rationality of Persecution

  Jeremy Waldron

  This is a paper about John Locke's argument for toleration, or, more accurately, it is a paper about the main line of argument which appears in Locke's work A Letter on Toleration. It is not intended – as so many papers on Locke's political philosophy are these days—as a historical analysis of his position. I am not going to say very much at all about the development (in some ways the quite remarkable development) of Locke's views on the subject, or about the contemporary debate on religious toleration in which Locke, first as an academic then as a political agitator, was involved, or about the historical circumstances of the Letter's composition. No doubt these are worthy subjects for a paper, but not, I think, for a volume devoted to toleration as an issue in modern political philosophy. Rather, I want to consider the Lockian case as a political argument—that is as a practical intellectual resource that can be abstracted from the antiquity of its context and deployed in the modern debate about liberal theories of justice and political morality. To put it bluntly, I want to consider whether Locke's case is worth anything as an argument which might dissuade someone here and now from actions of intolerance and persecution. There is a further somewhat more abstract reason for examining the Lockian argument. In its content and structure the Lockian case is quite different from the more familiar and more commonly cited arguments of John Stuart Mill. Even if, as I shall claim, it turns out to be an inadequate and unconvincing argument, one that in the last resort radically underestimates the complexity of the problem it addresses, still its distinctive structure and content tell us a lot about the possibilities and limits of liberal argumentation in this area. Those insights and the contrast with the more familiar arguments of Mill may well contribute considerably to our understanding of modern liberal theories of toleration and the 'neutral' state.

• 

  Philosophy of Rights

  Jeremy Waldron

  Moral and political philosophers use the concept of a right to do two quite different sorts of things. Like everyone else who is interested in the law, they use it to describe certain types of legal arrangement: situations in which the law of the land provides a person with some liberty, opportunity or benefit. But they also use the concept of rights to express certain moral claims: these include claims about the legal rights that people morally ought to have; ethical claims about the way people ought to treat and deal with one another; and abstract claims about the fundamental principles of social and political organisation. Though it is important to keep these moral and legal uses apart, it is also necessary to recognise that a lot of what is said about moral rights is modelled on what jurists have said about legal rights. Accordingly, the first section of this chapter will explore the role of rights in the law, while the sections that follow will consider their wider use in moral and political philosophy.

• 

  A Long Way From Home: Richard Wright in the Gold Coast

  Kwame Anthony Appiah

  A collection of critical essays on Richard Wright's work

• 

  Old Gods, New Worlds: Some Recent Work in the Philosophy of African Traditional Religion

  Kwame Anthony Appiah

  It would be hard to think of a single intellectual project in post-colonial Africa more central than modernisation. Some Africans would, I think, claim that decolonisation was itself a central project, and this is true. The decolonisation of the mind is a necessary process; and, despite many asseverations to the contrary, it has only just begun. But if decolonisation is important, it is as part of the project of modernisation; and those who regard intellectual decolonisation as a return to a pristine, traditonalist Eden, a return to the lares and penates of those shady beings we are in the habit of calling ‘the ancestors’, are sentimentalists: dangerous, some of them, like many sentimentalists, but sentimentalists nevertheless.

• 

  Agonizing Over the Simple Realities of Labor Relations

  Harry T. Edwards

  The first annual Benjamin Aaron lecture on the role of public policy in the employment relationship.