Faculty Chapters

Follow

• 

  Does Antitrust Have a Heart?

  Eleanor M. Fox

  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.

• 

  Folk Tort Law

  Mark A. Geistfeld

  The negligence standard of reasonable care is based on a largely undefined normative decision, making it the most important example of a substantive tort rule that is largely determined by folk law or the understanding that jurors as lay individuals have about the legal obligation. In order to be adequately determinate, the folk law of reasonable care must be based on a widely shared metanorm that jurors use to evaluate more particularized norms of behavior in concrete cases. Studies of jury decision-making in tort cases assume that there is such a metanorm without identifying it. These studies, like tort scholarship more generally, have not accounted for the substantial body of evidence showing that individuals are guided by a metanorm of reciprocity that can motivate them to sanction others for norm violations that are themselves based on reciprocity. By applying this metanorm to the case at hand, jurors enforce behavioral obligations that map into the modern tort rules of negligence and strict liability. A metanorm of reciprocity quite plausibly guides the practice of folk tort law, although it is a separate question why the legal system chooses to enforce this social norm. Folk tort law is not fully capable of answering this question, but as an important component of modern tort law, it should be accounted for by any persuasive interpretation of the practice.

• 

  American Legal Tender Rules and Risk Allocation

  Clayton P. Gillette

  In an increasingly cashless society, rules concerning the acceptance of legal tender initially seem irrelevant. If few people transact in legal tender, then of what interest are the doctrines that govern its use? On reflection, however, it is precisely the context in which multiple forms of payment proliferate that the rules of legal tender gain significance. The coexistence of multiple forms of payment gives rise to questions about which payment systems may be acceptable; which, if any, must be accepted; and the nonmonetary implications of the answers to those questions. The underlying ambiguity about what legal tender means complicates these issues. In this article I consider how these issues can be clarified by looking at legal tender rules as risk allocation devices. Payment systems vary significantly in the way that they allocate risk among the parties. Some payment devices can be countermanded by the payor. Personal checks are of this nature, and credit card charges can be reversed as unauthorized or as made without sufficient consideration. Other payment devices, such as cashier’s checks, are more difficult to countermand. Cash payments are final when received by the payee. A dissatisfied payor of cash must bring an action against the recipient rather than assert a right to countermand the payment. Checks also involve a risk that they are drawn on insufficient funds. Personal checks place that risk on the payee. Financial institutions that issue bank checks in return for a personal check take the risk of insufficiency, but the payee of the bank check does not (except for the unlikely event of bank insolvency). Cash payments, of course, eliminate the payee’s risk that the payor will be insolvent. Legal tender rules are not typically considered in terms of risk allocation. Discussions of legal tender tend to refer to other purposes, such as creating a common medium of exchange or allowing a government to create fiat money that signals and facilitates economic stability. I do not mean to suggest that these objectives are irrelevant to an understanding of legal tender. But in the modern American economy, the questions that have arisen about the meaning and scope of legal tender take those functions for granted. The more contemporary issues that address the capability of parties to use alternatives to legal tender in a transaction may better be considered through the lens of risk allocation than through the more traditional understandings of legal tender. For purposes of United States law, the relevant doctrine begins with a statutory mandate: “United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues. Foreign gold or silver coins are not legal tender for debts.” The effect of the statutory mandate seems relatively simple: A debtor may discharge a debt by offering the creditor an amount of United States coins and currency of a face value equal to the amount of the debt, notwithstanding that what the debtor is offering—pieces of paper—has no intrinsic value and is not supported by a promise to exchange it for specie or a valuable commodity. The statute eliminates any distinction between money that is lawful and money that constitutes legal tender—a distinction that existed in United States statutes prior to 1933. By elevating notes to the status of legal tender, the statute places the weight of law behind the convention of accepting currency for debts, which is itself predicated on little more than trust that there exists some subsequent creditor who will accept the same form of payment to discharge a debt or some subsequent seller who will accept it in return for goods or services. While that observation may seem prosaic today, the capacity of the federal government to confer legal tender status went unexercised for the first century of the nation’s existence and was quite controversial when Congress ultimately acted. The delay may have been a function, in part, of the fact that the United States Constitution is a document of grant, not a document of limitation. Thus, the federal government is not permitted to take any action unless it can find a grant of authority in the Constitution. In particular, Congress cannot create rules concerning legal tender unless it can find some textual authority in the Constitution for doing so. After expressly debating the pros and cons of paper currency, the Framers opted to grant Congress explicit powers to borrow, coin, and regulate the value of money, but omitted express mention of whether Congress could declare money to be legal tender. States, on the other hand, were absolutely prohibited from coining money, emitting bills of credit or making anything but gold and silver coin legal tender. The overwhelming concern at the Constitutional Convention was that paper money would generate inflation and disturb individual claims to money, defined as metallic coin with intrinsic value. This fear was predicated on the disastrous hyper-inflation that had followed the issuance of Continental dollars between 1775 and 1779.

• 

  “The Known Opinion of the Impartial World”: Foreign Relations and the Law of Nations in The Federalist

  David Golove and Daniel J. Hulsebosch

  Conventional accounts of The Federalist tend to overlook a critical and uncontroversial fact about the Constitution: the principal function it assigned the proposed new government was the conduct of the Union’s foreign affairs. By neglecting this simple point, readers too often miss the forest for the trees. The central task of The Federalist was not to offer a general blueprint for republican government but rather to demonstrate the depth of the Confederation’s failures in foreign affairs and to explain why the new federal government would govern more effectively in that realm without imperiling the republican commitments of the Revolution. This insight in turn reveals another: Even when The Federalist focuses on other, very different themes—whether in analyzing the general principles of federalism or the separation of powers, the importance of energy in the executive or independence in the judiciary, or the deficiencies of popular assemblies—foreign affairs remains its ultimate subject. These explorations were so many arguments to demonstrate that the federal government would neither repeat the Confederation’s foreign affairs blunders, nor pose a threat to the states and the republican principles upon which they were founded. The tension between productive foreign relations and domestic republicanism that emerged during the Revolution had not been anticipated at its outset. The Declaration of Independence assumed that these were harmonious ends when it announced as twin goals of the Revolution independent republican government in the states and peaceful commercial relations with the larger world, governed by the principles of the law of nations. By the time the Philadelphia Convention met, however, it was widely agreed that the weak institutions of the Confederation had failed on the latter front. State violations of treaties and the law of nations, which Congress could neither control nor redress, combined with its dependence on the states for financial and military resources, left the Confederation incapable of conducting the nation’s diplomatic relations, ensuring its security, promoting its commerce, or even paying its bills, not least the foreign loans that had helped finance the fight for independence. The ensuing foreign policy fiascos, combined with a mounting sense of impugned honor among American elites—rather than a quixotic effort to reform internal governance within the states from the ground up—provided the main impetus for constitutional reform. Although there was consensus on the need to reform the Confederation, sharp controversy remained over how many and what sort of amendments to seek. The framers provided their collective if negotiated answers to these questions in the proposed Constitution. The Federalist’s improved “science of politics” was designed to answer Anti-Federalist critics by demonstrating that the proposed reforms were the minimum necessary to preserve the Revolution’s goals of robust republican government at home and full integration of the United States into the Atlantic world of “civilized nations.” According to the authors’ diagnosis, the Confederation’s dysfunctional foreign relations resulted from the failure to manage the tension between these goals properly. At the root of the problem were the twin early decisions to concentrate largely unchecked power in the states’ legislative assemblies and, conversely, to construct only weak federal institutions to unite them. Experience demonstrated that the revolutionaries had struck the balance defectively. To preserve republicanism while managing foreign affairs effectively and honorably, it was necessary to adopt the Constitution’s innovative structural arrangements, which, The Federalist argued, would resolve the tension between republicanism and international legitimacy without jeopardizing either. It was in developing a theory adequate to respond to Anti-Federalist criticisms and justify the Constitution that the authors of The Federalist were led to their deepest insights. Borrowing from Scottish Enlightenment ideas—which they filtered through their political experiences under the Confederation—they rooted their argument in theories of human nature and the social psychology of governance, which they then applied not only to diagnose the causes of the Confederation’s failings but also to explain the institutional arrangements that could overcome them. The resulting account explained how the new federal government would be able to limit the influence of the destructive passions over the making of foreign policy and thereby take advantage of the bounded possibilities of peaceable, productive international relations.

• 

  Emergency, Democracy, and Public Discourse

  Moshe Halbertal

  Not all emergencies pose a surprise. Hurricanes, though devastating, are common and predictable. The bombing of Aleppo by Russian and President Assad’s forces caused a grave emergency to its inhabitants, but given the past brutal conduct of the Syrian Civil War, it came as no surprise. Not all emergencies evoke menacing uncertainty; in many of them, we have a clear sense of what they entail. The nature of the threat, its duration, and its impact are more or less predictable. The COVID-19 pandemic caught us unprepared; it appeared as a surprise (though we should have known better), and its future ruinous path is unknown to us. The conjunction of emergency, surprise, and uncertainty formed a perfect, unsettling, ominous storm. Unprepared and uncertain, we seek ways of responding to the pandemic. The effectiveness of our response to the threat and our capacity to weather its devastating impact rest on the strength of our public institutions and the quality of our political discourse.

• 

  The God of the Rabbis

  Moshe Halbertal

  Rabbinic theology, in the various Midrashim, reveals an intense attentiveness to God as a divine relational subject in the figures of king, a father, a husband, sometime a mother, and a judge. If God is, indeed, a relational subject capable of intentionality and responsiveness seeking a partner, the perfections attributed to him by the philosophers are actually flaws and imperfections from the perspective of Rabbinic theology.

• 

  Tangled Up in Tax: The Nonprofit Sector and the Federal Tax System

  Daniel J. Hemel

  Exemption is the term most often used by scholars, practitioners, and policy makers to describe the relationship between nonprofit organizations and the federal tax system in the United States. But although the term is useful as shorthand to characterize the complicated connections between the nonprofit sector and federal tax law, it also should be recognized as the misnomer that it largely is. The nonprofit sector is subject to a wide range of federal taxes—some of which apply broadly to nonprofit and for-profit entities alike, others of which fall almost exclusively on organizations that are ostensibly “exempt.” Insofar as nonprofit entities are excused from payment of federal income tax, exemption comes with a heavy load of compliance burdens, disclosure obligations, and other behavioral restrictions that dictate the day-to-day lives of these organizations. Rather than existing at several steps’ remove from the federal tax system, nonprofit entities are, in fact, tangled up in tax. Indeed, if the relationship between the nonprofit sector and the federal tax system were to be summarized in a single word, entanglement rather than exemption would be the more appropriate term. Nonprofit organizations in the United States are caught in a complex web of nonprofit-specific code provisions, the most significant of which are summarized and evaluated in previous editions of this book upon which this chapter builds. Even seemingly unrelated tax statutes often tie back to the nonprofit sector in winding ways. There is, moreover, no non-entangling option; even total exemption would result in interactions between tax authorities and nonprofit organizations at exemption’s boundaries. Some interactions between the federal tax system and the nonprofit sector are probably desirable. Insofar as the federal tax system seeks to support nonprofit organizations, such support almost inevitably involves a considerable degree of contact. The dominant dilemma in the design of the federal tax rules for non-profit organizations is how to manage entanglement without releasing all strings. Before proceeding further, it may help to clarify what exactly “entanglement” entails. The dictionary definition of entanglement is straightforward—“the condition of being deeply involved”—but that single definition elides entanglement’s many manifestations. Courts and commentators have drawn a helpful distinction between administrative entanglement and political entanglement. Administrative entanglement refers to the involvement of tax authorities in the lives of nonprofit organizations; political entanglement refers to the involvement of nonprofit organizations in the political sphere. Each category can be subdivided further. The clearest form of administrative entanglement is enforcement entanglement, which occurs when tax authorities audit the returns of nonprofit organizations or seek to collect taxes from them (e.g., through liens, levies, and foreclosures). Enforcement entanglement can be avoided if nonprofit organizations are exempt from tax, but exemption leads to a second form of administrative entanglement: borderline entanglement (i.e., interactions between nonprofit organizations and tax authorities policing exemption’s boundaries). Meanwhile, political entanglement can occur when nonprofit organizations are subjects of political controversy or when they are participants in political conflict. The two categories sometimes overlap, as when issues of taxation tug nonprofit organizations into the political sphere. Likewise, the efforts of tax authorities to prevent nonprofit organizations from becoming involved in political conflicts may themselves be a source of administrative entanglement. Administrative entanglement and political entanglement both refer to the entanglement of the nonprofit sector and the organs of government; a different type of entanglement occurs when nonprofit organizations become involved in the market—for example, by operating profit-seeking enterprises. Market entanglement raises several potential concerns. One is a worry about unfair competition between nonprofit organizations that enjoy the benefits of tax exemption and for-profit firms that pay full freight. A second concern is that excessive entanglement between the nonprofit sector and the market will divert nonprofit organizations from their core missions. A third is that nonprofit managers will prove ill-equipped to succeed in commercial ventures and that they will squander their organizations’ resources when they try. The weight of these concerns is discussed at greater length in other chapters of this book. The key point for purposes of this chapter is that market entanglement is an additional dimension of entanglement between the nonprofit sector and other sectors of society that the tax system seeks to control. This chapter approaches the phenomenon of entanglement in four sections. The first section sets out the central dilemma in the tax treatment of nonprofit organizations: how to support the nonprofit sector through the tax system while managing administrative, political, and market entanglement. The second section explores the key provisions of the Internal Revenue Code affecting the nonprofit sector and explains how these provisions balance a set of seemingly irreconcilable policy objectives with varying degrees of success. The third section considers recent legislative changes that significantly reduce the tax system’s support for the nonprofit sector while generating greater entanglement along several dimensions, and also raising the possibility that some nonprofit entities will opt out of tax-exempt status altogether. A final section offers tentative thoughts on entanglement’s future and reflections on possible reforms.

• 

  Processo e cultura giuridica = Procedure and Legal Culture: Scritti per gli 80 anni di Vincenzo Varano

  Helen Hershkoff and Stephen Loffredo

  We are honored to join this celebration of our friend and colleague Professor Vincenzo Varano. As U.S.-trained lawyers who specialize in civil procedure, federal jurisdiction, and constitutional law, we unquestionably owe an intellectual debt to Varano, whose scholarship on civil procedure and comparative law has played a critical role in introducing English-speaking lawyers to the intricacies of the Italian legal system. Varano’s work on this project has been no easy task. To be sure, every legal system is somewhat unique in terms of its history, structure, and motivating values; the U.S. system even claims to be “exceptional.” But the Italian system is particularly difficult for an outsider to navigate. The reasons are many: One such difficulty—which we will discuss later in this tribute—is the system’s pervasive reliance on “extraordinary” and “special” proceedings that complement but also overlap with the general proceeding. Providing a clear and comprehensive overview of the interlocking relationship of these different proceedings is an achievement in itself. As is known, Mauro Capelletti, Varano’s mentor, worked in the 1960s with two U.S. law professors to produce The Italian Legal System: An Introduction, aiming to “open the way to the study of Italian law and, through it, the civil law system.” This earlier account was for years regarded as the “most complete description in English of the Italian system of procedure,” presenting Italian law from the internal perspective “of theories and positions advanced by Italian jurists.” Varano’s later English-language writing on the subject, especially on Italian procedural reform after the 1990s, was no mere update of his mentor’s work. In particular, Varano brought to the surface the dynamic tensions and cross-currents in Italian law, combining fastidious description with trenchant criticism, as well as a realistic assessment of possibilities for reform. His articles, addressed to a global community of scholars, refused to treat Italian procedure as simply a way to understand the civil law (a skepticism shared by Cappelletti). While fully knowledgeable of the Italian system’s civil law roots, Varano interrogated the conventional binary distinction between inquisitorial and adversarial systems that had long marked comparative scholarship. Varano’s writings about Italian procedure were not mechanical lessons in rules of practice. Rather, they provided conceptual expression of his own special comparative method, which aimed, as he put it, at “facilitating the communication between lawyers belonging to different legal traditions.” In that vein, Varano consistently reminded English-speaking law students of the need to become and to remain sensitive to the difficulties of translating legal terms and judicial processes from one language and culture to another. Varano also brought exemplary administrative skills to his work as a procedural and comparative scholar, which further elevated his importance among U.S. and other English-speaking scholars. Throughout his career, Varano encouraged the expansion of intellectual engagement beyond the written word so that it embraced conversation, discussion, and face-to-face exchange. These sites of intellectual discourse required institutional structure and organizational support, and Varano made clear their significance in his work as a university administrator. During the early 1990s Varano served as Dean of the University of Florence Law School, and later assumed the mantle of Director of its Ph.D. program in Comparative Law. He was a member of the steering committee of the Italian Association of Comparative Law (1981-2001), an elected member of the American Law Institute, and a member of the International Academy of Comparative Law. As an administrator, Enzo created what his colleague Remo Caponi in a related context has called “transnational spaces of communication among legal practitioners, judges, and academics.” From our side of the Atlantic, Varano played a critical role in organizing and participating in conferences and associations that brought together civil procedure scholars from diverse national backgrounds and from common law as well as civil law systems. Helen fondly remembers her first encounter with Enzo at a conference on comparative law hosted by New York University at La Pietra, in Florence, which was followed by an elegant reception in Enzo’s home, attended by procedural scholars of varied backgrounds joined together by prosecco and conversation. Varano’s administrative undertakings, as with his scholarly writing, reflected a deep commitment to engaging scholars from diverse legal systems in order to devise solutions to urgent problems of injustice. Academic research for Enzo was not a matter of ivory tower contemplation, but rather part of a scientific project of reform that aimed at the development of sound policy. In his concluding remarks at the 2003 conference organized in honor of Capelletti, Enzo urged a stance of pragmatic flexibility; he offered a spirited rejection of the trans-substantive concept of “the same model of procedure rigidly con- ceived as applicable in every case,” and instead encouraged devising procedural reforms that would promote “an effective interaction among the various actors . . . assuring that the management of the case be proportionate to its peculiarities.” Finally, as U.S. scholars we are indebted to Varano for his unbounded devotion to teaching and mentoring. Meeting Enzo and Serena for dinner at a Florentine restaurant inevitably resulted in chance encounters with his former students, their spouses, and their children, replete with questions about a latest project and enthusiastic words of encouragement. No one can doubt that Enzo has been a constant source of support and inspiration for his students; the next generation of comparative law scholars in Italy as well as in the United States has benefited not simply from his example but also from his attention. Not surprisingly, his students have taken the lead in producing scholarship at a high intellectual level, sharing with their mentor a desire to nourish and to sustain international discussion. Whether in the area of Italian procedure or comparative constitutional law, Enzo’s influence has been manifest and broad, illustrated by the magnificent achievements of the three professors responsible for organizing this tribute.

• 

  Democracy for Losers: Comment on Bálint Magyar

  Stephen Holmes

  Using the mafia analogy to illuminate the predatory injustices perpetrated by territorially anchored political states echoes an ancient and venerable tradition. Still popular today, as the influential writings of Charles Tilly demonstrate, the analogy goes back at least to Saint Augustine: “Remove justice, and what are kingdoms but gangs of criminals on a large scale? What are criminal gangs but petty kingdoms? A gang is a group of men under the command of a leader, bound by a compact of association, in which the plunder is divided according to an agreed convention.” Bálint Magyar uses the mafia state analogy masterfully to classify and dissect the government of Viktor Orbán, with special emphasis on the way “the plunder is divided.” Rather than trying to criticize or correct his penetrating look into contemporary Hungarian politics, which I am in no position to do, I will concentrate on his remark that the post-communist mafia state in Hungary is “not ideology driven.” There is a good deal of truth in this claim, and especially in the notion that the regime’s worldview is eclectic, erratic, internally inconsistent, and instrumental to wealth accumulation by regime insiders. Without aspiring in any way to refute this highly original use of the mafia state analogy, I nevertheless think something important can be learned by focusing more explicitly on the instrumental role of ideology in bringing about and sustaining the Orbán system, a role that the “mafia state” metaphor does not encourage us to explore. Nothing I say is meant to diminish the role of clientelism, cronyism, nepotism, and self-dealing in building and sustaining the current system. Orbán and his circle can no doubt be understood as kleptocrats whose methods of rule are quixotic. They have managed to seize the heights of power only because they were able to rally and sustain significant public support. This support cannot be explained, as Bálint Magyar is the first to admit, by focusing solely on their criminally corrupt behavior. This is what he means when he describes the post-communist mafia state as marked by a “gap between the real nature of power and its required legitimacy.” In explaining the public legitimacy it has managed to garner, we should also look closely at the way Orbán describes the world to his supporters, a task made all the more urgent by the fact that his perspective on past developments and current trends is plausible and is spreading rapidly beyond Hungary. Given that classical mafia networks and groupings are sustained partly by patriarchal, traditionalist, and tribal allegiances and often resort to quasi-religious symbols and rituals, the blanket assertion that the post-communist mafia state in Hungary is “not ideology driven” may distract needlessly from some less scandalously acquisitive dimensions of the system Orbán has built. I will explore the ideological underpinnings of Hungary’s mafia state by reexamining Orbán’s notorious and eye-opening July 26, 2014, speech in Băile Tușnad, Transylvania in which he reaffirmed his commitment to building an illiberal state in Hungary. It was an audacious and politically resonant speech. The era of liberal democracy is over, Orbán announced, suggesting that the train of illiberal democracy already had left the station and that those who refused to clamber aboard will be left miserably behind. Those of us who are haunted by thoughts of a relapse into the cultural climate of 1930s Europe are acutely aware of the dark side of anti-liberalism. But we should not allow historical memories and current anxieties to dominate the way we understand the disturbingly broad appeal of Orbán’s anti-liberalism. He is consciously inverting our anxieties, stressing the dark sides of liberalism, and doing so with considerable political success. Rather than dismissing such talk as mere propaganda designed by a criminal elite conspiring to delude the unthinking masses, we need to understand what he and his supporters have in mind. As my reference to the 1930s was meant to suggest, there is nothing new about anti-liberalism. On the contrary, anti-liberal ideology developed in tandem with liberalism itself. It found its first great historical expression in the theorists of the French and German counter-Enlightenment. But the flame of an incendiary ideology is only politically dangerous when public emotions become exceptionally flammable. Today, around the world, authoritarian, xenophobic, and even racist public sentiment seems all-too-easy to ignite by anti-liberal grown-ups playing with fire. What I want to try to explain, using the Hungarian example, is why.

• 

  A Man for All Processes

  Samuel Issacharoff

  The American due process revolution that began in the 1960s was slow to reach Britain. The limited power of judicial review and the removal of procedure from the academic study of law left the field oddly barren just as it sprung to life in defining the relation between citizens and the state in the US. Almost single-handedly, Professor Zuckerman sought to reframe the legal understanding of procedural order in the UK. His use of a cost-benefit matrix to define the governmental interest in a particular course of conduct, and his use of the same metric to weigh the costs to private parties and the risks of legal error were transformative. Beginning with his work on the incentives to error created by the Mareva injunction, and continuing to his crusade over the exorbitant costs of British procedure, the result was a scholarly transformation of a field largely abandoned since the time of Bentham. This chapter chronicles the efforts of one far-sighted scholar to drag British procedure into the modern era.

• 

  An Enlightened Man

  Samuel Issacharoff

  Wojciech Sadurski has been the translator, interpreter, and clarion of the post-1989 transformation of Eastern Europe for an attentive public of constitutionalists. This chapter discusses his work, which has chronicled the transition from a concern for the most basic of human rights under authoritarian rule to the challenges of democratic governance. The compelling rights discourse of an earlier period gave way to a more delicate claim of abuse of majoritarian prerogatives as the hopes of liberal democracy encountered the power of illiberalism. Across his writings, one sees in Sadurski the constant need to redefine the structures of constitutionalism as the source of vulnerability shifts from the individual to the polity.

• 

  Judicial Review of Presidential Re-Election Amendments in Colombia

  Samuel Issacharoff, Santiago García-Jaramillo, and Vicente F. Benítez-Rojas

  In the third wave of democratization, beginning with the fall of the Soviet empire, the roles of constitutional law and constitutional courts have assumed central importance in defining fledgling commitments to democracy. Of all the newly minted courts, the → Constitutional Court of Colombia (Corte Constitucional de Colombia) has rendered opinions that are landmarks in global constitutionalism. Two of those decisions, Decision C-1040 of 2005 (Colom) and Decision C-141 of 2010 (Colom) define the struggle to protect fragile democracies from descending into the unfortunately familiar descent of command rule, either from unchallenged one-party domination or the personalist rule of a single figure. In the first of these, the Constitutional Court upheld a constitutional amendment that allowed presidential re-election for the first time (→ Heads of State; → Heads of Government and Other Senior Officials). In the latter, the Court struck down as unconstitutional a new amendment allowing President Álvaro Uribe to seek a third presidential term (ie second re-election). In what follows, we examine both the doctrinal foundations for the Court’s crafting of a ‘replacement theory’ of political accountability and situate the importance of these rulings in comparative constitutional law.

• 

  Frontiers of Global Administrative Law in the 2020s

  Benedict Kingsbury

  Global administrative law (GAL) has many pertinent antecedents, but the framing and labelling of what is now regarded as GAL began with academic initiatives in the early 2000s. In 2005 it was proposed that there was emerging a body of GAL, defined as comprising “the mechanisms, principles, practices, and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring they meet adequate standards of transparency, participation, reasoned decision, and legality, and by providing effective review of the rules and decisions they make.” The initial approach was explicitly a normative intervention: although mindful of pathologies in GAL, it asserted the broad desirability of seeking to render the rule-making and decision-making of these global regulatory bodies accountable and responsive to the diverse publics significantly affected by their decisions. The aim of this chapter—written for a general readership more than as a specialist contribution to the scholarly debates on GAL—is to consider how GAL now stands in relation to some of the major conceptual and contextual issues that might be thought likely to affect the nature and even the viability of this 2000s project in the 2020s. It will begin, in section I, by introducing the range of practices with which GAL has been concerned. In section II it first notes the contexts in which ideas about, and the practice of, GAL obtained some valence and rapid uptake in the period c 1990–c 2015, and then turns to some major contextual shifts that, from about 2015 onward, have seemed to alter the landscape for GAL quite dramatically. Building on this, section III examines some conceptual issues bearing on the nature and viability of GAL. Section IV takes a single set of GAL proceedings against a private global sports governance institution relating to eligibility to compete in the female category in elite athletics, to illustrate reasons for the continued and likely expanded role of GAL in the 2020s in some areas of private governance. Section V concludes.

• 

  Methods of Law and Economics

  Lewis A. Kornhauser

  Law and economics have long been intertwined. Indeed, in the nineteenth century, economics was taught in law faculties rather than in distinct departments of economics. In the late nineteenth and early twentieth centuries, the economists John Commons, Robert Hale, and James Bonbright studied the economic foundations of central capitalist legal institutions such as property and contract. Bonbright’s studies of the regulation of public utilities influenced the New Deal and the Supreme Court rulings that finally upheld the regulation. This first law and economics movement, however, had little impact on legal scholarship. The institutionalization of law and economics, or, as this entry shall call it, economic analysis of law, emerged after the publication of Posner (1973) which both applied the insights of the seminal articles of Coase (1960) and Calabresi (1961) to every doctrinal area of law and asserted first that the common law was (or at least promoted) efficiency and second that judges ought to promote efficiency. Posner (1973) provoked an outpouring of scholarship, some critical, but much of which used economics to broaden and deepen the analyses of virtually every area of law. Coase (1960), Calabresi (1961), and Posner (1973) launched a movement, not a school. Scholarship in economic analysis of law encompasses a wide of variety of scholars pursuing quite diverse aims. Some of this diversity reflects the ambiguity in Posner’s two efficiency claims which provoked an outpouring of critiques, largely of the normative claim that judges ought to pursue efficiency. (See, e.g., Symposium (1980) for the early out- cry.) Posner’s claims were ambiguous. Kornhauser (2017) identifies eight distinct claims about efficiency. It also identified three distinct projects within economic analysis of law that encompass a significant portion (but not all) of the scholarship: the doctrinal project, the project of policy analysis, and the project of political economy. These projects seek to explain, respectively, existing legal doctrine, the effects of legal rules on behavior, and the causes of the legal rules and institutions that exist. These three projects are best understood as studies about law, not studies of law though, on one interpretation of Posner’s efficiency claims, judges do in fact pursue and achieve efficient legal rules. The latter two projects within economic analysis deploy microeconomic theory to explain what legal rules and institutions we have and how those legal rules and institutions influence behavior. The analysis, however, generally takes law as unproblematically given. Moreover, the economic analysis is not specific to legal norms. The analysis can be applied, with appropriate variations for the different context, to other normative systems. Indeed, a substantial literature on the economic analysis of social norms has developed (see, e.g., McAdams 1997; Cooter 2000; Posner 2000). Nonetheless, the practice of economic analysis of law poses several challenges to traditional understandings of law. This entry considers three such challenges: instrumentalism, normativity, and the concept of law. These challenges flow from the methodology of microeconomic theory. Microeconomic theory relies primarily on a theory of individually rational behavior. This theory assumes that agents have both “rational” preferences that are complete and transitive and “rational” beliefs that they update in accordance with Bayes’s Rule. Each agent seeks to maximize an expected utility function that represents these preferences and beliefs. This rational choice framework is, as I shall develop in the discussion of normativity, extremely flexible. Analyses typically assume, however, that agents’ preferences are narrowly self-interested. In the political economy project, this assumption strongly supports a view of law that does not attribute any intrinsic value to law. Similarly, the rational preferences assumption strongly suggests that the only reasons for action that law gives are prudential ones. Finally, analytic practice in microeconomics suggests a social-scientific approach to the concept of law. It is important to note that the literature in economic analysis of law rarely explicitly addresses these issues—Kornhauser (1984, 2000, 2010, 2017) is an exception; thus few, if any scholars in economic analysis of law may endorse all, or even any, of the claim discussed here.

• 

  Reflections on Deliberate Ignorance

  Lewis A. Kornhauser

  Many different definitions of “deliberate ignorance” may be derived from the ordinary usage of these two terms. “Ignorance” may refer to an absence of belief, to an unjustified belief, to disregard of a fact, or to use of a fact known to be false. “Deliberate” may refer to a direct decision not to know some fact F or an indirect decision to know F′ rather than F. An individual may be deliberately ignorant but so may a group be. These different interpretations of deliberative ignorance raise different issues in different contexts. This essay develops a taxonomy of accounts of deliberate ignorance, suggests the criteria one might use to select among definitions, and identities some normative questions that arise from them in a selection of contexts ranging from debates over individual rationality to questions in political philosophy. Hertwig and Engel argue that psychology has largely ignored an important set of phenomena that they, ironically, call deliberate ignorance. They define deliberate ignorance as “the conscious individual or collective choice not to seek or use information (or knowledge)” and note that they are particularly interested in situations in which the marginal cost of knowledge acquisition is low and the expected benefits high. They then offer a functional taxonomy of deliberate ignorance, discuss why it might be normatively desirable, and suggest modeling strategies. In this essay, I offer a conceptual rather than functional taxonomy of deliberate ignorance. 1 This perspective sets deliberate ignorance within a more general framework that focuses on the distribution of knowledge and information. This framework raises questions concerning the appropriate scope of a concept of deliberate ignorance in the study of psychological and social phenomena. It also has implications for our understanding of both rationality and normative questions in moral and political philosophy. The argument relies on the literature on extended cognition and the extended mind, which argues that individual knowledge does not rest solely in the mind of the individual but also in the minds of others and in other artifacts. This argument thus lessens the gap between individual and collective knowledge. Questions of “deliberate ignorance” shift into questions about the distribution of knowledge and decision-making authority. The discussion begins with an analysis of the concept of deliberate ignorance. It then assesses its implications for understanding the norms of rationality and discusses issues pertaining to political and moral philosophy.

• 

  “We Hold These Truths to Be Self-Evident”: Constitutionalism, Public Reason, and Legitimate Authority

  Mattias Kumm

  Mattias Kumm puts forward the basic structure of an argument for a normative theory of public reason–based constitutionalism to determine what it would require if the law has the authority it claims to have but only if it is justifiable in terms of public reason and if constitutions seek to constitutionalize as a condition for legal validity this standard. Kumm contrasts public reason–based understandings of constitutionalism with conventionalist and democratic voluntarist conceptions of constitutionalism. He then discusses what a public reason–based understanding of constitutionalism implies for the foundations, structure, and interpretation of constitutions. Kumm concludes that even though the demands for establishing legitimate authority within a public reason–based framework are ambitious, public reason–based constitutionalism is the heir of the American and French revolutions, and dominant structures of prevailing constitutional practice in liberal democracies can be best explained and justified within such a framework.

• 

  The Evolution of Case Influence in Modern Consumer Standard Form Contracts

  Florencia Marotta-Wurgler

  This chapter explores the evolution of judicial influence using a hand-collected data set of all cases until 2016 that address the enforceability of clickwrap, shrinkwrap, and browsewrap contracts as well as their out-of-state influence over time. A foundational theory conceptualizes precedent as an investment that yields valuable information to subsequent courts that depreciates over time, as new circumstances and innovations make such precedent less helpful for later courts. Empirical research on judicial citations has found a “superstar” or “tournament winner” effect, whereby a handful of cases garner almost all citations for a given question. How do tournament winners fare over time? I find that the citation universe is indeed dominated by “tournament winners.” These cases, which tend to be decided by circuit court judges, influence other courts from the date they are decided. Instead of experiencing depreciation, however, I find that their influence continues to grow, even over cases that are hierarchically more important. In addition, cases tend to converge towards a particular rule or standard over time. The results enrich our understanding of the evolution of judicial influence and help inform theories of the evolution of precedent and the common law.

• 

  Politics and Kingship in the Historical Books, with Attention to the Role of Political Theory in Interpretation

  Geoffrey P. Miller

  This chapter explores the thesis that the historical narratives of the Hebrew Bible address abstract ideas about politics, government, and law. Taking issue with critics who view the Bible’s spiritual and theological message as incommensurable with political philosophy, the chapter argues that the stories of politics and kingship in the Hebrew Bible’s historical books set forth set forth an impressive political theory that rivals, in some respects, the work of Plato, Aristotle, and other Greek thinkers. The key is to bring out the general ideas behind the specific narrative elements. The chapter illustrates this thesis by examining the Hebrew Bible’s treatment of a number of classic problems of political theory: anarchy, obligation and sovereignty, distributive justice, and the comparative analysis of political organizations.

• 

  Reading Biblical Literature from a Legal and Political Perspective

  Geoffrey P. Miller

  The Bible’s Primary History—the great history of the Israelite people extending from Genesis to Second Kings—contains within it a remarkable set of ideas about government and law. The work touches on nearly all of the great themes of political theory in the modern era—the necessity of government, the problem of anarchy, the moral basis of obligation, the distinguishing features of good and bad leaders, and the analysis of optimal government structure and design. Associated with these political ideas is a remarkably insightful exploration of the basic problems of jurisprudence: the nature of law, the justifications for constitutions, and the articulation of specific legal norms in legislations and principles of customary law.

• 

  Rome and the Economics of Ancient Law I

  Geoffrey P. Miller

  This chapter serves as an introduction to the essays in this collection by exploring the ways in which contemporary economic theory can be used to ask new questions about the law and economies of ancient societies. The chapter begins with a review of the importance of Roman law as an academic discipline to legal historians. It then introduces the overall theme of the collection by reviewing the ways in which historians of the ancient economy and of ancient law have made use of economic theory to understand better the relationship between law and the economy in the Roman world. The chapter then goes on to discuss the individual chapters in this volume. It focuses in particular on the ways in which economic theory informs the approaches that the authors, both legal and economic historians, take in their essays. The chapter will thus set the individual chapters in a broader scholarly perspective and will seek to explain why economic methods are a fruitful way to understand Roman Law and Roman economic history.

• 

  Rome and the Economics of Ancient Law II

  Geoffrey P. Miller

  This chapter provides a broad overview of the chapters in the second volume of Roman Law and Economics. The subjects addressed in this volume include slavery and the Roman economy credit, property, dispute resolutions, and remedies, and finally wrongdoing and Roman law. The focus of my discussion is on the role that economic theory plays in the work of the various authors, who represent ancient historians, scholars of Roman law, lawyers, and economists. The chapter will provide a perspective on the contents of the book as a whole and will seek to explain why economic methods are a fruitful way to understand Roman law.

• 

  Equality and Discrimination

  Sophia Moreau

  Ever since the publication of John Rawls’ A Theory of Justice in 1971, Anglo-American philosophers have discussed the nature of equality and its place in a theory of distributive justice. They have asked whether it is equality per se that is valuable, or priority for those who are worst off, or perhaps sufficiency—that is, ensuring that each person has enough. They have also asked about the ‘currency’ of egalitarian justice: what is it that should be distributed equally? Is it welfare, resources, opportunities, or perhaps what Amartya Sen called ‘capabilities’? In response, philosophers such as Elizabeth Anderson, Samuel Scheffler and Joshua Cohen have argued that it is a mistake to think of the value of equality solely in distributive terms. Rather, within a democratic society, we need to aim at relational equality—that is, relationships of equal status, in which no one is unfairly subordinated to others. Relational equality requires the redistribution of certain goods; so it is not unrelated to distributive equality. But from the standpoint of relational equality, particular distributive goals matter only insofar as they help us achieve a society in which no one is relegated to the status of a second-class citizen. And to achieve such a society, we need to pay particular attention not just to how various goods are distributed, but also to inappropriate expressions of deference toward certain groups and censure of others, and to policies and structures that inadvertently leave certain groups unable to see themselves as full and equal participants in society. This description of relational equality sounds very much like a description of the aims of discrimination law. Most preambles to anti-discrimination statutes indicate that the purpose of such legislation is to prevent the unfair subordination of certain members of society and to create a climate in which people publicly recognise each other as deserving of equal respect. Discrimination laws apply not only to the state—through constitutional rights or statutes requiring non-discrimination by the government—but also to ordinary individuals, and in particular to those individuals who have power over other people’s access to basic social institutions, such as places of employment and education, and providers of goods and services. So these laws do seem to aim at ensuring, not just that the state treats us as equals, but that we treat each other as equals, giving everyone equal access to these basic social institutions without showing undue deference to some groups or undue censure of others. Discrimination law also aims to rectify certain distributive injustices, both between individuals and between groups. Those who have been unfairly denied certain goods are given them or their monetary equivalent. The discriminator is usually required to adjust his policies so that in the future, similar injustices will not occur. And sometimes quotas are imposed, for the benefit of the broader group marked out by a particular ground of discrimination. It may therefore seem surprising that discrimination and discrimination law have not been a part of our mainstream philosophical discussions about equality. Instead, they have been treated as a specialised area that does not hold much of interest to philosophers who are working on broader debates about the nature and value of equality. It is only recently that moral and political philosophers have taken an interest in discrimination and have initiated a debate about why it is wrong or unfair and what the purpose of discrimination law is. Why was this, and why has the situation changed? How do current debates among philosophers working on discrimination law relate to the debates about distributive and relational equality that I have just mentioned? And what are the most pressing currently unresolved issues in the philosophy of discrimination? These are the questions I shall be addressing in this chapter.

• 

  Purely Formal Wrongs

  Liam B. Murphy

  This chapter cautions against the moral grounding of private rights and duties and, in turn, private law's response to wrongs. The argument is framed as a rebuke to those who suppose that private law must be interpreted from an internal, rather than instrumental, point of view. According to this chapter, interpretive theorists assume that the deontic structure of private law implies deontological moral grounding. But it argues that there is no good reason to think this, and, indeed, there are plenty of reasons to think otherwise. Private law may be formally deontic but nevertheless have instrumental moral justification. The interesting and difficult question is what to make, normatively, of the deontic structure of private law. Against the view that civil wrongs are moral wrongs, this chapter asserts that they are purely formal.

• 

  Concurring

  Melissa Murray

  Today, a majority of the Court strikes down laws banning the performance and recognition of same-sex marriages on the ground that such laws constitute caste or class legislation in violation of the Equal Protection Clause of the Fourteenth Amendment. In so doing, the Court reiterates that the right to marry is a fundamental right and denominates sexual orientation a quasi-suspect classification subject to heightened scrutiny. I agree that the Equal Protection Clause compels the legal recognition of same-sex unions. My concern, however, is that although the majority has identified the various ways in which opposite-sex-only marriage laws constitute impermissible class legislation that rests on the inequality of LGBTQ persons, it has not grappled with the way in which the normative and legal priority of marriage compels the second-class status of all other family forms. On this account, I worry that in underscoring that the right to marry is fundamental, the majority’s opinion might be understood, however unwittingly, to endorse the view that life outside of marriage is by comparison less dignified, less profound, and less valuable. Our rationale for marriage equality should not be built on, nor should it fortify, the view that other relationships and kinship forms are unequal or less valuable than marriage. Doing so not only would diminish those who live outside of marriage but would further privilege an institution that, historically, has been deployed to maintain a racial and gender caste system. Accordingly, I write separately to make clear that nothing in the majority’s decision should be read as disparaging or discrediting nonmarriage and nonmarital family forms. Indeed, this Court’s jurisprudence provides strong support for the view that the Constitution protects and credits nonmarriage and the nonmarital family. Further, in writing separately, I also wish to provide some clarity for considering the position of alternative statuses, like civil unions and domestic partnerships, in our reconstituted landscape of relationship recognition.

• 

  The Historical Development of the U.S. Presidential Nomination Process

  Richard H. Pildes

  The institutional framework and legal rules through which democracies choose the nominees who compete to become a nation’s Chief Executive (the President or Prime Minister) are among the most important features in the institutional design of any democracy. Yet despite the considerable academic attention over the last thirty years to many other institutional and legal aspects of American democracy—redistricting, the regulation of money in politics, voting rights, election administration—surprisingly little scholarly focus has thus been devoted to the way we have come to structure the presidential nomination process. This scholarly gap is particularly striking because one of the most consequential and radical changes in the last fifty years to the way American democracy is structured is the change we made to the way the major party nominees for President are selected: the shift to a purely populist method in which primary elections (and a small dose of caucuses) completely determine the party’s nominees. Yet as those of us focused on the institutional design of democracy know all too well, different selection methods inevitably shape choices about the kind of people who choose to run; the kind of political figures most likely to succeed in capturing nominations and the White House; and, most importantly, on the way government functions and the interests and political forces to which it is most likely to respond. This chapter provides historical perspective on the evolution of the processes and institutions used to filter and present to the voters general-election presidential candidates since contested presidential elections began in the United States. Precisely because the dramatic new system put in place in the United States nearly fifty years ago has remained largely unchanged since then, most Americans undoubtedly have come to take for granted that our current system of presidential primaries and caucuses is the “natural” or the only “democratic” way to select nominees for President. Historical perspective can help destabilize that belief, and perhaps open up possibilities for considering changes to this system. Part I briefly chronicles the historical development from the Founding until the 1970s of the different methods and institutional frameworks used for selecting presidential nominees. This Part demonstrates that for most of American history until the 1970s, this process included a significant role for what is called “peer review,” in which those who were existing officeholders and party officials had significant weight in deciding who ought to represent the party as candidate for President. Part II then describes the radical change to this system that took place in the 1970s. That change can be characterized as the replacement of this “peer review” system with a purely populist selection process in which voters, through primaries and caucuses, completely determine the presidential nominees. In recovering this history, this chapter suggests that we did not so much intentionally choose this new “modern” populist system as much as stumble inadvertently into it. The current nominations process is unusual in two senses. Historically, we used various forms of “peer review” to select presidential nominees until relatively recently in our history. Comparatively, most democracies continue to use some form of peer review to filter candidates for chief executive before voters are given the final choice. In strong form peer review, such as the center-right parties use in Australia and New Zealand, the party leaders are chosen exclusively by the elected party figures who serve in Parliament. Voters have no direct say in the choice. In mixed systems, members of Parliament filter potential party leaders down to a certain number of candidates, with voters then being given a choice only between these pre-selected candidates. When the Conservative Party in the United Kingdom selects a new party leader, for example, the Conservative members of Parliament winnow down the candidates to two; party members then choose between these two candidates. Thus, the current U.S. system is unusual in a comparative sense in now opting for a system that completely bypasses elected members of the party and turns the process over to a purely popular vote process.