Faculty Chapters

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  Leveling the Playing Field Between Inherited Income and Income from Work Through an Inheritance Tax

  Lily Batchelder

  Despite our founding vision as a land of opportunity, the United States ranks at or near the bottom among high-income countries in economic equality and inter-generational mobility. Our tax code plays a key role. Inherited income is taxed at less than one-seventh the average tax rate on income from work and savings. This chapter proposes a major step toward leveling the playing field by requiring wealthy heirs to pay income and payroll taxes on inheritances they receive above a large lifetime exemption. As part of this shift, the proposal would repeal the current estate and gift taxes and would tax accrued gains (beyond a threshold) on transferred assets at the time of transfer. It would also substantially reform the rules governing family-owned businesses, personal residences, and the timing and valuation of transfers through trusts and similar vehicles. Relative to current law, the Urban-Brookings Tax Policy Center estimates the proposal would raise $337 billion over the next decade if the lifetime exemption was $2.5 million, and $917 billion if the lifetime exemption was $1 million. The proposal would almost exclusively burden the most affluent and most privileged heirs in society, while the additional revenues could be used to invest in those who are not as fortunate. As a result, the proposal would soften inequalities, strengthen mobility, and more equitably allocate taxes on inheritances among heirs. It would also enhance efficiency and growth by curtailing unproductive tax planning, increasing work among heirs, and reducing distortions to labor markets and capital allocation. Furthermore, the proposal is likely to increase public support for taxing inherited income. While the burdens of estate and inheritance taxes both largely fall on heirs, inheritance taxes are more self-evidently “silver spoon taxes” and appear to be more politically resilient as a result.

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  Good Faith in Contractual Exchanges

  Richard R. W. Brooks

  Two ideal views—here labeled “consensual rationality” and “contractual morality”—bracket the various approaches to the contractual doctrine of good faith—the focus of this chapter. Both views grant that good faith entails norms of cooperation. It is where the doctrine locates, ought to locate, these norms that defines the difference between consensual rationality and contractual morality. While elaborating on this essential point, the chapter advances three principal claims. First, consensual rationality and contractual morality may be best seen as extreme points on a common continuum over which courts and most commentators take positions somewhere in the middle. Practical implementation of the doctrine of good faith will always lie between the extremes of these ideal views. Second, the doctrine of good faith exists largely to protect the practice of contracting rather than aggrieved parties themselves. Third, community standards of fair or moral conduct play an inevitable, if unacknowledged, role in the doctrine of good faith, including those interpretations grounded in economics reasoning. Academic efforts to remove conventional morality from good faith are futile. An economic order, the chapters concludes, which is based on efficiency without established standards of fairness is as plausible as a legal order based on law without equity.

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  The Funding Landscape for Affordable Housing Finance

  Deborah K. Burand, Claudia Rojas, R. V. Verma, W. Britt Gwinner, Lucie Astier Such, Vinod Kothari, and Mona Kachhwaha

  How do low-income families, representing some 70% of the world’s population, finance home building and improvements—and how is the financial sector, from microfinance institutions and banks to investors and regulators, changing to serve their needs? The practice of housing microfinance has evolved substantially, with a large number of innovations across the entire housing financing ecosystem. New research methodologies, such as financial diaries, have yielded a deeper and more nuanced understanding of how poor households use finance, both formal and informal, to construct their homes. The housing finance industry is also growing. The home improvement loans that are at the heart of housing microfinance are offered in hundreds of institutions, leading to important lessons on how they work. Meanwhile, a new class of institutions—micro-mortgage lenders—have emerged to fill the space between housing microfinance and traditional mortgage lending. On the funding side, debt funding is now available to finance or re-finance housing microfinance loans; while other investors have carved out a new role for equity investing in housing finance—showing the critical role that private investors can play. And now a new breed of public wholesale financing has emerged, showing the catalytic role public sector investment can play in encouraging housing finance markets in their countries. This volume explores recent innovations in housing microfinance, presented by the innovators themselves: a range of leading experts in the field, from field researchers and financial providers, to investors and regulators. It is a key reference to any reader interested in expanding housing finance for the world’s poor.

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  What Counts as a Good Settlement?

  Kevin E. Davis

  This chapter discusses the criteria that ought to be used to evaluate negotiated solutions in transnational bribery cases and the rules that govern them. The premise is that the rules that govern negotiated resolutions should, at the very least, conform to the principles set out in the United Nations Convention against Corruption. The UN Convention suggests that the objectives of anti-corruption initiatives include effectiveness, efficiency, and due process, with condemnation, compensation, and prevention as subsidiary objectives. In addition, the anti-bribery regime generally should allocate power and resources legitimately and fairly. Both the rules which govern negotiated resolutions and the resolutions themselves ought to be evaluated in terms of the extent to which they achieve all of these objectives. However, the range of ways of defining and weighting these objectives, combined with the difficulty of assessing the harm associated with any given instance of misconduct, makes it unlikely that there will be any consensus about how to evaluate any given resolution or resolution process.

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  Reinvigorating Democracy in the European Union: Lessons from Ireland’s Citizens Assembly?

  Gráinne de Búrca

  This chapter begins with a brief summary of two sets of democratic challenge facing Europe—the original ‘democratic deficit’ of the EU and the more recent growth of populist illiberalism—which have in common the erosion of trust in conventional political institutions and processes. It considers these democratic challenges alongside another contemporary phenomenon, namely the growth of interest in alternative forms of citizen participation, whether deliberative, popular, digital, or other, in various parts of the world. The chapter moves on to examine in more detail a recent experiment with deliberative citizen participation in one EU Member State, namely Ireland’s use of citizens’ assemblies to introduce constitutional and public policy change, and asks whether Ireland’s experience could offer any possible lessons to address some aspects of the EU’s democratic ills.

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  The Mutual Judicial Influence of National Courts and the European Court of Justice through the Preliminary Rulings Mechanism: Evidence from the United Kingdom

  Gráinne de Búrca

  Taking the moment of imminent UK exit from the European Union as an opportunity to reflect on the mutual influence of the Court of Justice of the European Union (CJEU) and the English courts, this chapter examines the 113 preliminary references made by the higher English courts over a 10-year period to investigate two related questions. These are: first, the extent to which the CJEU’s rulings have been implemented by the British courts, and second, the extent to which the interpretations proposed by the UK courts may have influenced the CJEU. On the first question, the chapter’s findings indicate that it is very difficult to assess the extent to which the preliminary rulings of the CJEU were implemented by the referring UK courts, given the remarkable lack of information available about what happens following a preliminary ruling of the Luxembourg Court. On the second question, the chapter’s findings suggest that in the substantial number of cases in which the British courts advanced a proposed interpretation of EU law, the CJEU adopted that interpretation in a majority of those cases. Hence, even though the CJEU has rarely acknowledged the influence of national referring courts on its rulings, the cases referred from the higher UK courts over the past decade suggest that instead of a one-way relationship in which British courts were subject to the overriding authority of the CJEU, there was a process of mutual influence in which the Luxembourg court more often than not adopted the interpretation of EU law proposed by the British court.

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  Protecting Fundamental Values in International IP Disputes: Investor-State vs. WTO Adjudication

  Rochelle C. Dreyfuss

  This chapter compares the resolution of investor-state disputes (ISDS) under bilateral investment treaties and free trade agreements with investment chapters, with state-state dispute settlement under the World Trade Organization’s Dispute Settlement Understanding (DSU). It demonstrates that across five dimensions—(1) the framing of disputes; (2) the incentives of disputants; (3) the interests of the relevant institutions; (4) the structure and impact of the awards; and (5) the leverage associated with the procedures—ISDS is far more intrusive on regulatory authority than WTO dispute resolution. The chapter concludes with suggestions for making ISDS more responsive to sovereign interests.

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  The Challenges Facing IP Systems: Researching for the Future

  Rochelle C. Dreyfuss

  While intellectual property (IP) has both enabled and responded to technological change, the Information Age with its Knowledge Economy, more particularly the internet and digitization expose it to formidable challenges. This essay identifies and inquires into the “trouble spots” in both substantive law and the institutional setting of the IP system. To this effect, it examines, inter alia, the ambivalent relationship existing between IP-based and non-IP based incentives for innovation and creation, the risks of over-rewarding creators/innovators by the availability of exclusive rights, the possible persistence of market dominance beyond the term of protection, and the likely asymmetry of the distributive effects of IP exclusivities. It also deals extensively with the challenges that the institutions of the IP system must face in the Information Age.

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  Trade Marks and Cultural Identity

  Rochelle C. Dreyfuss and Susy Frankel

  In a 2017 decision, the US Supreme Court held that constitutional commitments to free expression barred the Patent and Trademark Office from rejecting the registration of 'The Slants' for an Asian rock band, even though the term is understood to disparage Asians. Because we do not agree with the Court’s view that true speech can always correct false speech, we argue that the US can learn from the ways in which New Zealand trade mark jurisprudence protects cultural integrity while ensuring free speech. In so doing, we follow Sam Ricketson’s admonition that common law jurisdictions learn from one another.

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  WIPO’s Role in Procedural and Substantive Patent Law Harmonization

  Rochelle C. Dreyfuss and Jerome Reichman

  As other chapters in this volume attest, in its 50 years of existence WIPO has made tremendous strides in many creative fields and has shepherded the international intellectual property regime through major political and institutional changes. However, in the realm of patent law, its efforts have been marked by a sharp dichotomy: significant progress on procedure coupled with successive stalemates on substantive issues. The story begins with the Paris Convention of 1883, which, through its obligations regarding national treatment and the right of priority, made it feasible to acquire patent protection in all Union members. A truly international scope of protection, however, only became practicable with WIPO’s establishment and management of the Patent Cooperation Treaty (PCT). Further procedural efficiencies were achieved in the Strasbourg Agreement, the Budapest Treaty, and the Patent Law Treaty (PLT). In contrast, the Paris Convention originally included little by way of substantive patent law norms, and repeated attempts to improve the situation failed. In a sense, WIPO as a specialized agency of the UN was born of the tensions between industrialized and developing countries with regard to the substantive scope of patent protection. Friction between high protectionists and low protectionists persisted through—and well past—the entry of the WTO into the sphere of patent jurisprudence. To be sure, the contrast between the pace of procedural and substantive developments is not difficult to understand. Procedural reforms lower the cost of obtaining protection and administering the patent system. Thus they benefit inventors of all nationalities and can save the resources of all member states, whether developed or developing. However, strong substantive protection raises prices, reduces output, produces deadweight loss, and can make critical inventions—such as medicines to cure deadly diseases—inaccessible. For industrialized countries, there is arguably a worthwhile trade-off between static inefficiencies of this sort and the dynamic gains available from relying on supra-competitive profits to encourage innovation. However, that is less true for countries that are far from the technological frontier. For them, the patent system can be beneficial – but only if the international regime recognizes the types of intellectual contributions that these countries can provide and if it is structured in a way that allows them to realize benefits from other advantages of patenting, such as increased technology transfer. This chapter begins with a description of the successful procedural initiatives undertaken by WIPO and its administrative predecessor, BIRPI. It moves on to consider their less successful efforts at substantive norm development. The lesson to be gleaned is that when a regime governs a single area of law, one that is closely tied to health, safety and economic growth, it is not possible to achieve substantive gains without giving due consideration to the interests of all relevant parties. We end by asking whether recent developments provide the basis for a renewed attempt to craft a better harmonized normative framework.

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  Choice of Law in EU Trade Secrecy Cases

  Rochelle C. Dreyfuss and Mireille van Eechoud

  Trade secrecy law has become a popular way to protect innovative information. In 2016, the United States enacted its first federal civil trade secrets law, thereby supplementing the protection long available under the laws of every US state. At the same time, the EU promulgated the Directive on the protection of undisclosed knowhow and business information (trade secrets), giving member states two years to implement protection into their own laws. The desire for strong trade secrecy protection is not difficult to understand. Patents do not cover all of the inventions of the modern economy. Software, computer-related business methods and genetic information are not always considered patentable, but because many of these advances can easily be exploited nonpublicly, they are amenable to protection as trade secrets. As importantly, modern global business practices increasingly put knowhow and other confidential information at considerable risk. Technical information is often on computers or in the ‘cloud’, from which it can be appropriated remotely. Jobs are no longer held for life. With more employee mobility, the possibility that information will be taken increases. The internet enables firms to enter crossborder collaborations and joint ventures, or to employ workers who live at a distance. New business models, including geographically dispersed value chains, require information sharing among developers, manufacturers, distributors, sellers and service organizations. The risks associated with these new arrangements were paramount in the EU when the Commission proposed the Trade Secrets Directive. The Explanatory Note to the Proposal discussed the importance of this ‘long-standing form of appropriation over valuable information’ in the context of its description of open innovation and new business models. The Commission also emphasized the transnational nature of the problem, mentioning two key difficulties with leaving protection to member states: ‘sub-optimal incentives for cross-border innovation activities’ and ‘fragmented legal protection [that] does not guarantee a . . . scope of protection and level of redress within the Internal Market’. It opined that ‘the convergence of civil law remedies would allow innovative businesses to defend their rightful trade secrets more effectively across the EU’. Similarly, the Preamble to the Directive refers to ‘collaborative research, including cross-border cooperation,’ ‘cross-border network research and development’ and ‘cross-border trade’. Despite the Directive’s attempt to facilitate transnational R&D, it does not include rules on the law applicable in cases that affect multiple jurisdictions. The EU lawmaker assumes that existing generic applicable law instruments provide adequate solutions (see rec. 37 Directive). Yet crossborder business activities can span multiple locations. For example, information about a production process may be developed in one state, utilized in another, and the resulting products distributed worldwide. The result can be extraordinarily complex choice of law questions. At first glance the Directive makes choice of law rules appear unnecessary. It protects information that is secret ‘in the sense that [it] is not . . . generally known or readily accessible’, which ‘has commercial value because it is secret’ and which has been ‘subject to reasonable steps . . . to keep it secret’ from ‘unlawful acquisition use, or disclosure’. However, the Directive is not a Regulation. Moreover, the experience of US states with a similar legal formulation suggests that courts can interpret these terms in radically different ways. This chapter begins with the US experience and explains why, notwithstanding the states’ widespread adoption of the Uniform Trade Secrets Act (UTSA), the outcomes of US cases can be non-uniform, and raise difficult choices in multistate situations. After demonstrating that the same problems are likely to occur under the Directive, the Chapter considers how the EU regulations on applicable law ought to apply. Two regulations address this question. Misappropriation is generally considered a tort, which implies application of the Regulation on the law applicable to non-contractual obligations (‘Rome II’). Various conflict rules of Rome II may come into play in disputes over trade secrets, notably the general rules for torts, the provision on unfair competition, and perhaps the provision on intellectual property. But there is often also a contractual dimension at play in trade secret cases, notably in cases involving employees under secrecy obligations – and other cases involving other forms of collaboration and joint venturing, where confidentiality is imposed by contract. There may be reason to rely on the Regulation on the law applicable to contractual obligations (‘Rome I’).

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  Digital Human Rights Investigations: Vicarious Trauma, PTSD, and Tactics for Resilience

  Sam Dubberley, Margaret L. Satterthwaite, Sarah Knuckey, and Adam Brown

  Human rights investigations have often relied heavily on interviewing witnesses and survivors, visiting the sites of abuse, and analysing physical evidence. Now, new technologies, such as the increased availability of cheap mobile phones with cameras and improved network connections, mean that some elements of a human rights investigation—whether about the conflict in Syria, extra-judicial killings in Nigeria, or the conditions in which refugees are forced to live in Australia’s unlawful offshore detention centres in Papua New Guinea—can be carried out by researchers located anywhere in the world, including those far away from the site of abuse. When human rights investigators are removed from zones of violence or conflict, they are generally not targets of physical attack themselves. Yet their work is not risk-free. Investigators may be subjected to digital attacks such as threats, harassment, trolling, phishing, or the intrusion of spyware. And, in the course of their digital fact-finding, investigators can be exposed to significant amounts of distressing and traumatic photographs, video, or other materials, creating a risk that they will experience high levels of stress, compassion fatigue, burn-out, depression, substance abuse disorders, and post-traumatic stress disorder (PTSD). The work of the digital and open source investigator may include, for example, sifting through a database of hundreds of videos of airstrikes, searching in real time on Twitter for photos showing police beatings during a protest, or closely and repeatedly examining (p. 272) one video of a massacre. Investigators may view large quantities of raw, often bloody and graphic, content in their quest to assess if such content can be turned into evidence for reporting, advocacy, or legal action. Their workdays may include extensive and repeated exposure to ‘intense visual material’, and they may view scores of incidents of abuse each day. Investigators may be exposed largely to traumatic material via digital sources, or such exposure may occur alongside exposure through interviewing, site visits, or personally experiencing insecurity. The considerable risk of psychological distress through secondary experiences of potentially traumatic events has been under-addressed in the human rights field for various reasons. These include the relative recency in which viewing traumatic photos and video has been incorporated in the definition of PTSD; the generally poor response of the human rights field to the mental health risks of advocacy; and the far more rapid growth of fact-finding with online and digital content compared to the strategies designed to counter its ill-effects. In bringing insights from psychology together with experience of the challenges which human rights researchers face in researching with new technologies, the aim of this chapter is twofold: to show that secondary trauma is a real risk for human rights researchers in the digital age; and to introduce human rights researchers and organizations to techniques and methods for mitigating harm and building resilience. In section 1 of this chapter we outline the general criteria, symptoms, and risk factors for PTSD, and discuss the potential link between viewing photos or video of abuse and PTSD. We focus on PTSD because it is one of the most common types of adverse outcomes which can follow exposure to potentially traumatic events. Other mental health issues can arise in the course of human rights work—such as burn-out and depression—and while we discuss techniques aimed at preventing PTSD, the practices outlined may help some people to mitigate the broad range of negative psychological outcomes. In section 2, we discuss why digital and open source investigations pose a unique challenge to the mental health of human rights researchers. In section 3, we share various tactics which investigators can adopt to help prevent, mitigate, and respond to stress related to exposure to traumatic material. Section 4 turns to organizational strategies for working with potentially traumatic material, and section 5 addresses the impact of technological choices on exposure to distressing material, suggesting that developers need to confront and design with the risk of PTSD and other adverse effects in mind.

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  Collegial Decision-Making in the US Courts of Appeals

  Harry T. Edwards

  In July 2017, I participated with a number of other judges from various courts in both civilian and common law jurisdictions in a conference at All Souls College, University of Oxford, on “Collective Judging in Comparative Perspective.” The purpose of the conference was to explore the internal decision-making processes of modern collegiate courts in a comparative perspective. Participants were asked to share and discuss their respective views from the bench, focusing on procedural rules and conventions within their own judicial systems to facilitate comparative discussion of the themes which arise. In preparation for the conference, I asked every Circuit Chief Judge to fill out a questionnaire regarding how her or his court pursues decision making. After completing my research on collegial decision making and reviewing the survey forms, I wrote this paper, entitled “Collegial Decision Making in the U.S. Courts of Appeals.” In the paper, I note that too often commentators attempt to equate the decision-making practices of the U.S. Courts of Appeals with those of the U.S. Supreme Court. This is a mistake because our organizational structures and judicial responsibilities are strikingly different. And, unlike the Supreme Court, most of the decisions issued by the Courts of Appeals are unanimous. For the terms between 2011 and 2016: The Courts of Appeals issued over 172,000 total decisions on the merits. Only 1.3% of these decisions included a dissent. Less than 1% of the total decisions included a concurring opinion. And 90% of our “published” decisions were issued without a dissent. During the same time period: 56% of the decisions issued by the Supreme Court included a dissent; 40% of the signed decisions included a concurring opinion; and only 46% of the Supreme Court’s decisions were unanimous. The extraordinarily high number of unanimous decisions issued by the Courts of Appeals says a lot about our decision making. This paper explains how Court of Appeals judges pursue their decision-making responsibilities. In particular, the paper considers the methods and quality of collegial decision making in addressing the following questions: What procedures and policies do the courts follow to facilitate decision making? Do decision-making practices facilitate genuine and effective efforts by the judges to reach unanimous decisions? How should we measure the quality of the decisions rendered by the Courts of Appeals? The paper also considers the effects of collegiality on collegial decision making, addressing the need for collegiality; how a court instills and maintains collegiality; and the potential threats to collegiality. The survey responses from the Chief Judges are included in the paper, along with ample data confirming that very few dissenting and concurring opinions accompany the decisions issued by the U.S. Courts of Appeals.

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  Combatting Union Monopoly Power: The Contrast Between Pre- and Post- New Deal Legal Regimes

  Richard A. Epstein

  The status of unions in the United States has been a source of constant political strife for the past 125 years. The differences in worldviews are not matters of small detail, but of fundamental design. It is important, therefore, to set out in rough historical fashion the evolution of the legal responses to union power. To most of the authors in this volume, the emphatic rejection of the common-law rules that once regulated management-union relations ranks as one of the unalloyed achievements of the New Deal era, which in rapid succession passed the Norris-LaGuardia Act of 1932 (an act signed by President Herbert Hoover, and sponsored by two progressive Republicans, Senator George Norris of Nebraska, and Representative Fiorello LaGuardia of New York) and the National Labor Relations Act of 1935. For many years I have strongly taken the opposite position. I think these two statutes represented a major backward step in labor relations, which was tempered only in part by the passage, in 1947, of the Taft–Hartley Act, which modified the NLRA.

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  One Step at a Time in Roman Law: How Roman Pleading Rules Shape the Substantive Structure of Private Law

  Richard A. Epstein

  This chapter argues that the Roman law system of a staged system of pleadings, which emerged in the mature formulary system and then was eventually carried over into the common law, offers a superior way to understand and classify legal doctrine in ways that lead to overall economic efficiency. The arguments here stress the conceptual formation of classical Roman law on matters that retain their full salience today. It does not deal with the details of the historical evolution of Roman procedure. Indeed, its main purpose is to contrast the genius of the staged system of Roman law pleading with a flaw in the modern conception of civil procedure, which funnels all disputes through a reasonableness inquiry. In dealing with practical legal disputes it is virtually impossible to generate some major rule that leads to optimal results in a wide range of cases. The pleading system takes the reverse tack and seeks to achieve optimality through a system of successive approximations, starting with the prima facie case, working through defenses, and most critically, replies and further pleadings, finishing with joinder of issue to incorporate all the elements that are traditionally thought relevant to systems of tortious (as the civil side of delict) and contractual responsibility. These elements include identifying those obligations that should be strict, those that are governed by negligence principles, and those as intentional harms on both the tort and contract side of the line. The approach should be understood as an explicit rejection of the dominant modern approach that removes all the hard-edge distinctions and uses a generalized conception of reasonableness as an umbrella conception that encourages decline of doctrine and the ad hoc resolution of particular disputes.

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  Toward the Peaceful Coexistence of Patent and Antitrust Law

  Richard A. Epstein

  The goal of the Global Antitrust Institute Report on the Digital Economy is to provide a balanced perspective—grounded in economic analysis and empirical evidence—on a wide variety of contemporary issues in antitrust law and economics. To this end, we have relied upon generous intellectual contributions from some of the most influential economists, legal scholars, and practitioners across the global antitrust community.

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  Individual Employee Rights at Work

  Cynthia Estlund

  There have been laws regulating the employment relationship for as long as there have been employment relationships. Across the industrialized world, societies have claimed a significant stake in workers’ terms and conditions of employment, and have been unwilling to leave them entirely to the vagaries of private bargaining within unregulated labour markets. For much of the 20th century, the primary mode of societal intervention into the employment relationship took the form—or a variety of forms—of frameworks for collective representation and bargaining. But even when and where collective bargaining was the dominant mode of workplace governance, the collective freedom of contract was either constrained by legislation (e.g. setting a floor on labour standards), coordinated through (corporatist) institutions accountable in some manner to the wider public, or both. Work has long been deemed too important to leave its regulation entirely to the decisions of workers and employers alone. So alongside the development of legal frameworks for collective bargaining—which aim to reform the bargaining process between workers and employers—modern industrial societies have also regulated the substantive terms of employment. With few exceptions they have done so in response to the demands of workers and their allies for protection from employer treatment that is deemed unfair, exploitative, arbitrary, or otherwise contrary to societal norms of decent work. To that end legislatures, and sometimes courts, have imposed mandatory rights and minimum terms or conditions of employment that are more generous to employees than those which the latter might have agreed to, individually or collectively, under prevailing labour market conditions. (To be sure, many of these employment mandates also correct for collective action problems, information asymmetries, or other impediments to efficient contracting; but they still operate largely in favour of employees, as constraints on employers, and as floors rather than ceilings on what the parties may agree to on their own.) By contrast, employers are generally thought capable of protecting their own interests in the employment relationship, and are rarely given the benefit of mandatory terms of employment more favourable than those they can exact for themselves through voluntary agreements.

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  The Fall and Rise of the Private Law of Work

  Cynthia Estlund

  The modern law of labor and employment emerged out of a century of struggle by workers and their organizations for recognition of the public stake in those relationships. That struggle supplies a historical plot line for this account in the US: From the publicly-enforced dominance of private law before the New Deal settlement in the 1930s; to the New Deal model itself, with collective bargaining at its core; to the subsequent rise of the public law of employment, centered in the courts; to the present moment. The net result is a body of law that in one sense is neither here nor there, but that contains elements of both private and public law. The U.S. law of work and its history may be unusual, among other ways, in the extent to which the battle lines between labor and capital have corresponded to the lines between private and public law. A brief survey of that history will set the stage here for a closer look at tensions between private and public law within contemporary employment law, especially as seen in controversies over mandatory arbitration and independent contracting. Both controversies illustrate employer efforts to expand the domain of private ordering through contract and to blunt or escape the liabilities and limitations arising out of public employment law. The story is largely U.S.-centric, but will offer some broader comparative observations along the way and in concluding.

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  Yesterday’s Labor Law and Today's Challenges

  Cynthia Estlund

  American labor law was constructed for one world; it is seriously dysfunctional in the very different world we now inhabit. The existing labor law framework was formed in an economy dominated by large, integrated, capital-intensive firms in manufacturing, communications, and transportation. Large branded companies like General Motors, General Electric, and General Foods employed their own production workers and janitors; those workers’ unions bargained with the power brokers of the national economy. Product market competition was bounded and muffled by a combination of trade barriers, regulation, and the sheer cost of transporting goods and services. Today, hypermobile capital, fissured production networks, deregulation, and globalized competition have utterly transformed the landscape of work. Those developments have weakened workers and empowered managers of the profitable “lead firms” that preside over geographically dispersed supply chains; they have separated most workers from the firms that profit from their work and govern their fate; and they have given firms greater means, motive, and opportunity to avoid or escape the constraints and costs associated with unionization.

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  Taking Treaty-Implementing Statutes Seriously

  Samuel Estreicher

  This chapter evaluates how implementing legislation has been a critical aspect of the U.S. treaty-making process since the very beginning of the Republic. Yet modern academic studies of U.S. foreign relations law too often neglect treaty-implementing statutes. While the treaty spells out the international obligations, the implementing law is the domestic face of the treaty, except in the increasingly rare instances where the treaty is considered self-executing. Ultimately, treaty-implementing legislation constitutes the operative law of the United States with respect to the treaty in question. The chapter then seeks to rekindle interest in this part of the process in the making of U.S. foreign relations law. A renewed appreciation by the courts and politically accountable breaches of, and focus on, the central role of the implementing statute in the case of non-self-executing treaties is likely to yield several significant benefits for the development of U.S. foreign relations law. These include, firstly, a better understanding of the precise U.S. law position on a particular issue; secondly, avoiding the dangers of blanket incorporation of treaty language that fails to adjust for U.S. institutions and legal culture; and, thirdly, providing an opportunity for Congressional expansion of protection beyond the requirements of the treaty.

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  Publius’s Political Science

  John A. Ferejohn and Roderick M. Hills Jr.

  How does Publius’s treatment of politics in The Federalist measure up as “political science”? On one hand, the purpose of the essays was more polemical than scientific. The Federalist sought to persuade New Yorkers to adopt the proposed Constitution rather than to evaluate it from an entirely dispassionate stance. Yet Publius’s rhetorical method necessarily required predictions about the ways in which the new institutions would work. The Federalist necessarily made use of positive (empirically based) political science to ground normative political arguments to defend the novel constitutional scheme.

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  Article 10 Consent and Material Validity

  Franco Ferrari and Jan Bischoff

  A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract.

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  Article 4 Applicable Law in the Absence of Choice

  Franco Ferrari and Jan Bischoff

  A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract.

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  General Report

  Franco Ferrari, Friedrich Rosenfeld, and Dietmar Czernich

  Due process constitutes one of the most fundamental guarantees of judicial procedure. With origins dating back to the Roman Laws of the Twelve Tables created around 450 BC, the principle of due process as we now understand it has developed its legacy over centuries. Important milestones in this process include the Perpetual Edict of Hadrian, Justinian’s Corpus Iuris Civilis, the Magna Carta, modern constitutions, and international human rights treaties. What originally developed as a defensive right against the exercise of State authority has also become one of the core pillars of private justice in arbitration proceedings. Indeed, the observance of due process is a key component of the arbitration framework and one of its important legitimizing factors. Despite its uncontested relevance as a fundamental pillar of the arbitration framework, due process has remained a concept the normative contours of which are somewhat undefined. Neither the New York Convention nor the UNCITRAL Model Law expressly refer to the concept, let alone attempt to define it. Rather, it appears that due process is an umbrella concept covering various guarantees of procedural justice that are dispersed across the arbitration framework.

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  Pairing Public and Private Antitrust Remedies

  Harry First

  At a time of reckoning for the future of antitrust, this Liber Amicorum brings together a diverse collection of today’s leading thinkers to pay tribute to Albert Allen (Bert) Foer, founder of the American Antitrust Institute (AAI). In doing so, it illustrates the intellectual landscape of the antitrust debate, with articles that go to the heart of its goals, and others that light a path forward towards reform. Others yet delve into the pressing issues of enforcement and remedies. The variety of voices included characterize the breadth of perspectives that Bert cultivated at the AAI, from lawyers and academics to enforcers and journalists. In providing a platform for multidisciplinary discourse through the AAI, Bert helped create the foundation on which today’s movement rests, a public citizen’s voice spotlighting competition as the basis of diversity and dynamism.