Mar 7, 2011 Michael Carrollip
David Fagundes, Property Rhetoric and the Public Domain, 94 Minn. L. Rev. 652 (2010).
Are patents and copyrights “property,” and does it matter? While the question is not new in the field, David Fagundes provides a fresh perspective, arguing persuasively that the question should be understood as rhetorical rather than ontological, and that, yes, it does matter. In Property Rhetoric and the Public Domain, Professor Fagundes aims to build upon the work of scholars working in a tradition he labels the “social discourse of property” to reorient the use of property rhetoric with respect to “intellectual property” away from a solely private rights understanding of property. By doing so, he argues, advocates for a positive conception of the public domain will be better equipped to blunt the force of property rhetoric deployed to expand the subject matter, scope or duration of copyrights and patents.
This article follows a prior piece, Crystals in the Public Domain, 50 B. C. L. Rev. 139 (2009), in which he argues that ex ante uncertainty about user rights in copyright is a significant problem that could best be addressed by clearer boundaries between private and public rights in copyright law. While that argument addresses the functional advantages of clearer public rights to use another’s copyrighted expression, this piece argues that there are significant rhetorical advantages to a more clearly defined public domain in copyright law. In his words, “[b]y framing their concern about the public domain as a concern about preserving public property (rather than simply resisting property), actors concerned about this issue can restore balance to this debate.” (P. 701.)
The argument proceeds in three steps. First, Professor Fagundes argues that property rhetoric currently is understood through the lens of “ownership” discourse, which understands “property” to mean private rights that are good against the world. Exhibit A for this thesis is the very different public reactions to the Supreme Court’s rulings in Kelo and Eldred. In each case, the Court held that the constitution did not protect members of the public from elected officials transferring their rights to another private party. Certain groups were outraged by the Kelo result because, in their view, the Court had fundamentally disregarded specific private owner’s property rights. By contrast, the Act at issue in Eldred “took not just from the original plaintiff Eric Eldred, but from every member of the public the entitlement to use expired copyrighted materials for another twenty years.” (P. 655.) This transfer, however, was greeted with a public yawn because it was not seen as a transfer of public property into private hands.
The second step in the argument is to introduce the “social” discourse of property as a contrasting rhetorical frame in which to understand both public and private entitlements. He draws attention to four distinctive features of this approach: (1) property is relational and a variety of actors have relevant interests in the resources covered by entitlements; (2) the scope of entitlements deserving the title “property” is broader than private rights against the world, including “new” property entitlements, such as a right to public assistance, as well as public or other forms of commonly-held entitlements; (3) publicly owned resources are valuable in their own right and also contribute to the value of private entitlements; and (4) the values that property ownership, whether public or private, supports include non-market values.
In the final step of the argument, Professor Fagundes seeks to show that this approach is particularly well suited for understanding “intellectual property.” In his view, current discourse about patent and copyright divides between property romance and property anxiety, with the romantics embracing broad private entitlements and the anxious seeking to curtail the continued expansion of the subject matter, scope and duration of patents and copyrights. Professor Fagundes argues that if the anxious were to accept that information entitlements appropriately are denominated “property”, they can then rely on the social discourse of property to recast the limiting doctrines in copyright and patent law as not simply limits on privately owned entitlements but also as the border at which publicly owned entitlements begin.
Professor Fagundes makes a nice contribution to the literature by drawing upon the social or relational discourse of property to illuminate a rhetorical path for public domain enthusiasts to follow when engaging with the private rights discourse that dominates popular discussion of patent and copyright law. I will confess that I am not fully persuaded by the argument, and think that the discourse of liberty may supply greater rhetorical advantages with respect, at least, to limitations and exceptions to the rights under patent or copyright law. But, Professor Fagundes deserves recognition for the clarity and cogency with which he advances the argument for viewing the public domain through property’s lens.
Mar 3, 2011 Kimberley Brookstax
Writing for Festschriften is an art. A Festschrift author must pay tribute without being trite; advance our knowledge in an area without being presumptuous; and engage an audience beyond the scholar about whose work the Festschriften is focused. No small feat.
For a model of the genre, look no further than Richard Vann’s The History of Royalties in Tax Treaties 1921 – 61: Why?, which was published in a collection of essays in honour of John Tiley, one of the UK’s great tax scholars. Although the essays were published in 2008, I suspect that Vann’s chapter will only get its due now that he has posted the abstract on SSRN. (One of my longstanding frustrations with book publishers is their reluctance to permit authors to post chapters on line in full. This chapter is a case in point. It deserves a wider audience than it will receive.)
Vann’s chapter is readworthy for four reasons. First, Vann is a marvellous writer. One could substitute some of his pieces for bedside reading authored by Mario Vargas Llosa. To illustrate, Vann identifies Tiley’s major contributions as anchoring the tax history movement, surveying the borders of the schedular system, and asking not only what the law is but why it is so. Vann lines up his efforts in this chapter with Tiley’s contributions:
[A]n international cocktail is appropriate to celebrate Tiley’s work and this one will mix the history of the tax treaty rule on royalties up to the emergence of the modern form, the borders of the provision and the fundamental question of why we have it (viewed from a historical perspective).
The sketch of the tribute to Tiley’s work has been paid, the lines for the addition Vann will make to our knowledge have been drawn, and with the next paragraph, Vann captures the audience. He proposes to explore the history of the royalties article with a view to answering the question: why has the royalties article persisted in tax treaties when the transnational income flows to which it applies could have easily and logically been covered by other articles such as the article dealing with business profits?
It is common to divide the history of tax treaties up to 1961 roughly into three eras: the early League of Nations models and treaty practice in the 1920s and 1930s; the Mexico and London models and treaty practice in the 1940s; and the Organisation for European Economic Cooperation work and treaty practice in the 1950s. A second reason that Vann’s chapter is worth reading is that altogether aside from the historical tax treaty treatment of royalties, it provides a rich and detailed discussion of the various factors at play more generally in the formulation of treaty policy during each of these periods.
The depth and richness of Vann’s experience with tax treaties – both academically in thinking about the the policy rationales that support the decisions they reflect and practically in working with tax treaty administrators – is a third reason to read this essay. Because tax treaty negotiations are generally not exposed to public scrutiny, obtaining insight into the justification that undergirds particular choices is a matter of speculation. In reviewing the history immediately following the 1928 treaty models Vann offers two possible explanations for the tensions around the allocation of taxing rights between the source and residence state for payments that might broadly be referred to as royalties. He offers a “political” explanation that is rooted in the perspectives of the small number of nations with representatives on the Fiscal Committee at the time that wanted stronger source country taxation and a “technical” explanation that is based on the complexities of characterization of payments and the difficulty of preventing different jurisdictions from characterizing the same income stream differently. Vann is able to offer these hypotheses and develop them throughout the chapter in a way that connects the pieces of the forty-year story he tells because of his vast experience in this area.
Finally, Vann’s chapter reports on an enormous amount of detailed research work in an economy of space. He tracks the history of the royalty provision not only as reflected in the model treaties, commentaries, and observations, but also it evolved in the treaties of particular countries.
The piece serves as the “must start” point for research on the royalties article of tax treaties, without question, but it also serves as a useful roadmap for others wishing to pursue the political economy of tax treaties or the historical evolution of inter-nation tax negotiations more generally.
Feb 28, 2011 Allison Tirreslegalhist
Modern immigration law is built upon a specific historical foundation: the efforts of lawmakers to exclude Chinese immigrants from the country in the late nineteenth century. Remarkably, all of the early cases affirming the constitutionality of Chinese Exclusion are still good law. Based on this jurisprudence, Congress has “plenary power,” free of judicial oversight, over the substance of laws seeking either to exclude migrants or to deport them. Hypothetically speaking, if Congress were today to pass a law declaring that people of Middle Eastern heritage would not be admitted into the country, it would not face constitutional scrutiny (unless, of course, the Court decided to overturn the Chinese Exclusion Case). Plenary power has served to insulate immigration law not only from equal protection norms, as the above example demonstrates, but also from other constitutional challenges, including those to retroactive lawmaking. To provide just one example, a legal permanent resident today can be detained and deported for a misdemeanor crime committed decades ago that was not a deportable crime at the time she committed it.
Scholars have critiqued the disconnect between immigration regulation and constitutional norms using a variety of methodologies. Rarely, however, has legal history been among them. The reasons for this are varied, but one of the primary ones is the relative silence of the Constitution on matters of immigration. The Constitution does not explicitly refer to immigration at all, and the Framers did not expressly discuss immigration policy. This has led to a widely-held assumption that there is not much to learn from the Founding Era to guide Congress and the courts in decisions about modern immigration regulation. In their article, Reclaiming the Immigration Constitution, James Pfander and Theresa Wardon effectively challenge this assumption. They do so using the most persuasive tools of legal history: in-depth, nuanced research into a rich and little-discussed trove of primary source material.
The basic argument of the article is clear: to understand what lawmakers in the founding era thought about immigration regulation, we must look to naturalization law. The authors demonstrate that matters of immigration and naturalization were “virtually synonymous” in this period. They point to two main reasons for this link: the difficulties of travel to the fledgling country and the extant laws barring aliens from owning property. When migrants made the long, difficult journey to the eastern seaboard, they did so with an expectation of staying (precluding the modern phenomenon of return migration) and of becoming naturalized citizens (which was the only way that they could own property and therefore make a life the newly adopted homeland). The authors argue that when the Framers drafted the naturalization clause of the Constitution, giving to Congress the power “to establish a uniform rule of Naturalization,” they were fully aware that the content of such a law would guide immigration policy, since migrants relied on naturalization rules to decide whether to migrate in the first place. An attention to the reliance interest of would-be migrants and current legal permanent residents underlay the Framers’ concern for creating a “uniform” and “established” federal rule, one that would prevent the states from drafting conflicting and shifting naturalization laws.
This concern for what the authors aptly call the norms of “prospectivity, uniformity, and transparency” in naturalization law did not end with the framing of the Constitution but continued to guide naturalization law in the early Republic. Pfander and Wardon draw on drafts of the 1790, 1795, and 1798 naturalization laws and the congressional debates surrounding them to make their point. Lawmakers were clearly concerned with protecting those who entered under prior state regimes, before the passage of federal law, from adverse consequences. In debating later changes to naturalization laws, they carefully avoided making amendments that would function retrospectively to disadvantage those who migrated in reliance on an earlier framework. The guiding impulse behind early naturalization law – which was inextricably linked to immigration regulation – was a respect for widely-agreed upon procedural norms.
With these findings, the authors are able to do something that many works of legal history (often by design) do not: play out the direct ramifications of their historical findings for contemporary immigration law. Locating immigration constitutionalism in early naturalization law challenges three specific elements of the modern framework: retrospective laws, private naturalization bills, and the public rights doctrine. As a whole, this theory of immigration constitutionalism casts doubt, in a novel way, on the notion of Congress’s unfettered plenary power over immigration matters. The authors do not dispute that Congress has wide latitude when it comes to the substance of immigration regulation, but they argue that its procedures must be guided by the founding norms of prospectivity, uniformity and transparency. These three together would lead to much more robust protection of the rights of immigrants, particularly those who have established roots in this country. There is some indication in recent case law that judges are already enforcing these procedural norms, albeit inconsistently. This article gives them even greater reason to do so, grounded in solid historical interpretation of the Founding Era and the early Republic.
Feb 24, 2011 Henry Chambersworklaw
Susan Grover & Kimberley Piro
, Consider The Source: When the Harasser Is the Boss, 79
Fordham L. Rev. 499 (2010), available on
SSRN.
In their excellent essay, Susan Grover and Kimberley Piro propose that courts explicitly consider whether a harasser is the target’s co-worker or the target’s supervisor in deciding whether harassment is sufficiently severe or pervasive to constitute actionable harassment under Title VII. Grover and Piro argue that the same harassment will have a different effect on a reasonable employee – a core part of determining if the harassment is severe or pervasive – depending on whether the harasser is the target’s co-worker or the target’s supervisor. The key point – that a supervisor’s direct power over an employee makes criticism or harassment from a supervisor much more harmful to the target’s employment than the same behavior by a co-worker – is virtually unassailable.
The essay identifies an important doctrinal issue. However, its power is it that it raises a practical issue relevant to many workplace harassment disputes and considers how courts ought to address the practical issue through existing doctrine. Rather than create an exotic problem and suggest that courts alter doctrine to address it, the essay makes a very precise point and offers a real prescription for addressing the point. The prescription can be incorporated very easily by courts into their analyses of current harassment cases because it does not require the extension, alteration or reinterpretation of Supreme Court doctrine. The authors implicitly suggest that courts should already be taking the status of the harasser into account when evaluating the severity or pervasiveness of the subject harassment because doing so is already consistent with the Supreme Court’s Title VII doctrine. That may not be the flashiest legal scholarship, but it is very important and worthy of note as a TILL (Thing I Like Lots).
As Grover and Piro explain, courts must address two questions in harassment cases. The first focuses on whether actionable harassment exists. The second focuses on whether the employer should be liable for the harassment. The Supreme Court has indicated how the second question is affected by whether the harasser is a co-worker or a supervisor, both in discussing the distinction between quid pro quo and hostile work environment harassment and in creating the Faragher/Ellerth affirmative defense that may be available when a supervisor triggers a hostile work environment. However, the Court has been far less specific regarding how the first question is affected by the harasser’s status.
The Court limits actionable hostile work environment harassment to severe or pervasive harassment. Severe or pervasive harassment is harassment that alters the conditions of the employee’s employment. However, in defining what harassment will be actionable, the Court has tended to focus on how abusive the subject harassment was. Doctrine suggests that courts consider the totality of the circumstances when determining if the harassment is sufficiently abusive to be deemed actionable.
The authors note that whether a harasser is an employee’s supervisor or merely a co-worker ought to matter in determining whether the subject harassment is abusive enough to alter the conditions of the employee’s employment. One premise of the argument is that co-worker harassment can be handled in ways that supervisor harassment cannot. For example, a target can usually ignore a co-worker’s abuse without direct reprisal. However, a supervisor’s harassment cannot be so easily ignored. An employee must listen to one’s supervisor if only to take instruction regarding legitimate aspects of one’s job duties. Indeed, as the authors note, refusing to listen to one’s supervisor may lead to legitimate discipline. In addition, the workplace conditions for an employee may be affected indirectly depending on the identity of the harasser. When the harasser is a supervisor, other workers may feel freer to harass the target than if the harasser were merely another co-worker.
However, according to the authors, most courts appear to look only at the content of the harassment the target endures rather than the identity of the harasser. The totality-of-the-circumstances test focuses on the abuse the target suffers and whether that abuse alters the conditions of employment. If, as the authors suggest, a reasonable employee feels more abused if harassed by the employee’s supervisor than if harassed by the employee’s co-worker, the identity of the harasser is important. Indeed, the identity of the harasser would matter precisely because the harasser’s identity may significantly increase the level of abuse suffered and determine whether the conditions of employment have been altered. Consequently, courts should specifically consider the identity of the harasser when determining if actionable harassment has occurred.
The essay provides a good and tight argument. It does not provide an exhaustive treatment of the issue and need not have done so. Certainly, the essay could have been longer and could have explored whether the harasser must be the target’s supervisor or merely need be someone higher in the workplace hierarchy than the employee, such as a supervisor in a different division, with the power or influence to make the victim’s employment more difficult than a regular co-worker could. However, such extended treatment was not necessary.
The essay took an issue of practical concern to those harassed in the workplace and explored both how courts have approached the issue and how current doctrine allows courts to approach the issue more properly. More essays of this type should be welcome both inside and outside of the academy. To the extent that law ought to be understandable by the public and should sensibly resolve real issues facing by those in situations regulated by the law, focusing on practical issues and making the doctrine sensibly consistent with the real world is plenty enough reason to write an essay and plenty enough reason to suggest that others read such an essay.
Feb 21, 2011 Richard Parnhamlegalpro
Suzanne Le Mire,
Testing Times: In-House Counsel and Independence,
14
Legal Ethics (forthcoming 2011), available at
SSRN.
Particularly for those of us who live in Europe, Suzanne Le Mire’s new paper on in-house counsel independence is an interesting addition to the existing literature. In September 2010, the European Court of Justice (ECJ) gave its final ruling in the Akzo Nobel Chemicals and Akcros Chemicals v Commission test case regarding the availability of legal privilege for corporate counsel in relation to European Union competition investigations. In the course of its judgment, the Court made some fairly forthright assertions about the lack of independence of in-house lawyers – notwithstanding that the lawyer at the centre of the case was a member of their country’s national bar association.
While the controversial ECJ judgment is discussed in Le Mire’s paper, the case is not central to the issue she wishes to discuss. Instead, Le Mire goes back to first principles: in her introduction, she briefly discusses the pros and cons for companies employing independent in-house counsel – what are the specific challenges those lawyers face? what are their advantages? Here, Le Mire cites Lewis A Kornhauser when she argues that that “independence is not a goal in itself, but a pathway to another goal, such as credibility, or breadth of knowledge”.
Importantly, this topic is not a matter of idle academic curiosity. Rather, as Le Mire illustrates, the question of whether an in-house counsel has, in fact, behaved “independently” of their employer tends to form an important part of the judges’ decision-making processes in specific cases (the Akzo Nobel judgment being just one of four cases discussed in this paper). As Le Mire also illustrates, the fact that different courts in different jurisdictions have assessed in-house lawyer independence (or lack of) using different criteria means there is a lack of commonality in different jurisdictions. Yet, because many in-house legal teams routinely operate on a cross-border basis, courts’ inabilities to assess the independence of in-house lawyers in a globally-consistent way is, arguably, unhelpful.
Just as importantly, as Le Mire points out, inconsistencies appear between what factors different courts will consider, when evaluating whether an in-house lawyer has behaved independently, when compared with their private practice equivalents. In light of this inconsistency, it is perhaps not surprising that Le Mire has included one test case for assessing independence: “that could be equally informative regardless of the employment situation of the lawyers concerned.”
After providing illustrative examples of apparent failures of in-house lawyer independence during an early part of her report, Le Mire sets out several different concepts of independence: capacity, status, power and relational. Briefly, these concepts can be describes thus: Capacity essentially means the “ability to engage in independent judgment”; Status may mean that the opinions of in-house lawyers are listened to, possibly because they are the “conscience of the company”; Power appears to relate to in-house lawyers’ ability to actively “do” things (or stop things being done) with the company; and Relational means that structural barriers are erected to minimize the risk that undesirable external factors may influence a in-house counsel’s advice.
Although the concepts of independence that Le Mire provides are useful, I find myself challenging the argument, which is good response to an article. Most importantly, not all theories of independence that Le Mire outlines are consistently defined and explained. For example, the concept of “Capacity”, which she states is the most serious aspect of an in-house counsel’s independence is, in fact, developed within the section of the paper headlined “The political concept of independence” – rather than explicitly signposted in its own right, as are the related concepts, “Status” and “Power”. In a different vein, “Power” is cited as a theory defining in-house independence, in both the explanatory text and summary table – but not then explicitly mentioned in her illustrative court rulings.
Perhaps one of the most challenging conclusions reached by Le Mire is that her most valued concept of independence – capacity – is arguably the most difficult to assure. Ms Le Mire may rightly be critical of courts’ over-reliance on in relational mechanisms as for protecting the independence of lawyers. However, while relational mechanisms may not, in reality, be the panacea for guaranteeing in-house lawyers’ independence that some courts appear to consider they are, they at least have the value of providing clarity and predictability. By contrast it would, perhaps, be inevitable that any case relating to the independence of in-house lawyer that was determined by capacity alone would be wholly-facts specific. Justice in individual cases may well be served by such a development. Legal certainly would not.
In light of this, it is perhaps therefore not surprising that Le Mire is in favor of a combined approach for ensuring the independence of in-house lawyers. She advocates that the most important factor for assessing independence should be capacity, but this should then be supported by other factors such, such as relational, status or power considerations.
Of course, if the courts were, globally, to adopt Ms Le Mire’s approach to assessing the independence of corporate counsel, there would still be a degree of uncertainly of about whether in-house lawyers had behaved independently in specific scenarios. However, if courts could agree to use the same considerations, around the world, then at least in-house lawyers in many countries would, for the first time, enjoy the possibility of potentially being recognized as being “independent” by their own courts. And that development would, on a global basis, probably represent progress for many in-house lawyers, when compared with their status today.
Feb 17, 2011 Heather Gerkenconlaw
For election law and statutory interpretation junkies, there’s a nifty student note in the Yale Law and Policy Review by Zachary Hudson on how to construe the products of direct democracy. (In the interest of full disclosure, I should note that I played no role in supervising the paper).
As I teach my students in election law, judges always face a dilemma when trying to figure out what an initiative means. Initiatives are often vaguely worded and lacking in detail. And the usual tools courts deploy to deal with vague texts in the legislative context – like legislative reports – aren’t as helpful here. Even when an initiative is accompanied by a handbook or the like, there’s no guarantee that the voters read it before they cast a ballot. And judges are often reluctant to look to advertisements, media coverage, or surveys as evidence of the voters’ intent, as these inquiries seem pretty far afield from the usual assessments involved in judicial review. Finally, we all know it’s hard to figure out Congress’ intent because Congress is “a they, not an it” (when you talk about “congressional intent,” you are really trying to capture the views of many legislators with vastly different motivations). Needless to say, it is even harder to figure out the intent of the multitude we call “the people.”
Hudson responds to these problems by suggesting an eminently sensible proposal drawn from contract law: resolve statutory ambiguities against the interests of the party that drafted it. It’s an idea that makes sense from a normative and practical standpoint. As a normative matter, organized interest groups hold most of the cards in the initiative process. Unlike everyday citizens, they possess the resources necessary to get something on the ballot and then get it passed. Hudson’s rule of construction sensibly places the risk of ambiguity on their shoulders.
The rule creates the right incentives for interest groups to take care in drafting. Better yet, it reduces their incentives to write a vaguely worded statute in the hope that they will get a big win from the courts (a generous interpretation of a statute that wouldn’t have passed had the question been put explicitly to the voters). Some think, for instance, that the law struck down by the Supreme Court in Romer v. Evans fit this model; it was sold as a provision outlawing “special rights” for gays and lesbians (like affirmative action), but it’s wording reached a good deal farther to deprive gays and lesbians of more basic protections.
Best of all, as a practical matter, Hudson’s rule of construction is something courts might realistically adopt. Some of the proposals on interpreting the products of direct democracy have an air of unreality. They typically require courts to engage in complex political judgments about the initiative, the legislative process, and the relationship between the two. Hudson’s proposal may not be a slam dunk on the manageability front, but at least we know that courts have had some experience in applying this rule in contracts cases. At the very least, Hudson’s intriguing proposal looks like a good place to start.
Feb 14, 2011 Martin Krygierjuris
Stephen Holmes,
In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror,
97 Calif. L. Rev. 301 (2009), available at
SSRN.
Many thinkers have combined a high regard for the rule of law with a negative view of it. This is only an apparent, verbal, paradox. For it is common to understand the rule of law as good, less for what it enables and creates than for what it might prevent. On this interpretation, the point of law is to block and limit the possibility of unruly power, to curb and restrain power’s exercise. This is not a new view. Recall Bracton’s revealing metaphor from the thirteenth century, of law as ‘the bridle of power,’ by which a just king, as distinct from a ‘tyrant,’ must ‘temper his power.’ The characteristics most associated with law changed over the centuries, particularly moving from custom to legislation, and with those changes went different conceptions of what the law needed to be like to do its proper work. However, the identification of the rule of law’s purpose with constraint endured. And it still does. Where the rule of law is commended, it is typically for what it rules out rather than what it rules in; what it restrains and prevents, rather than what it generates and encourages to flourish.
That is not the only way of viewing the rule of law, however, and arguably not the best. Jeremy Waldron has recently criticized views of constitutionalism according to which “[e]verything is seen through the lens of restraint and limitation,” and has insisted on the empowering role and potential of constitutional provisions. Similar points might be made about the rule of law. Stephen Holmes has long stressed the empowering consequences of law; what, in contrast to the more common negative conception, he calls “positive constitutionalism”. Appropriately configured laws, on this view, provide “enabling constraints.”.
For the “paradoxical insight” here, as Holmes describes it, is that:
Limited government is, or can be, more powerful than unlimited government. … that constraints can be enabling, which is far from being a contradiction, lies at the heart of liberal constitutionalism … By restricting the arbitrary powers of government officials, a liberal constitution can, under the right conditions, increase the state’s capacity to focus on specific problems and mobilize collective resources for common purposes.
On this view, like a swimmer who must master, and in a sense come to be mastered by, techniques and disciplines to marshal and channel raw energy for effective performance, so the ability of a state to concentrate its powers where and how it should is enhanced by legal requirements, procedures and institutions which, among other things, block its ability to splash around where and how it shouldn’t.
Not all jurisprudential arguments have dramatic practical implications, but this one does. Consider the often-voiced claim that elements long believed central to the rule of law need to be waived or suspended in confrontation with the terrible threats posed by international terrorism. On the negative view, it seems at least plausible to argue that there are inbuilt tensions and necessary tradeoffs between the logic of urgent, strong and effective action in emergencies, and that of the rule of law. We might approve of both, but we need to recognize that one lives in inexorable tension with the other.
But what if the effective exercise of power depends on precisely those constraints on arbitrary power that impatient politicians are eager to discard? And what if this is especially true in emergencies. This is what Holmes argues. His argument has many strands, but central is a remorseless development of and reflection on an analogy that is as simple to state as it is, once made, hard to resist.
Holmes argues that, so far from being a reason to discard the rule of law, times of emergency are precisely when pre-tested, often long-evolved, constraints on arbitrariness in the use of power are typically most needed. He explores a range of contexts, such as intensive care medicine, in which emergencies are the stuff of life (and death), pointing out that “emergency-room doctors and nurses are not the only professionals who, when faced with a disorienting crisis, limit discretion and abjure gut-reactions, embracing instead a strict adherence to rules and protocols that provide them with a kind of artificial ‘cool head”’ (p.302); “only those who fail to appreciate the gravity of a looming threat would advocate a wholesale dispensing with rules that professionals have developed over time to reduce the error rate of rapid-fire choices made as crises unfold” (303).
Holmes is thus critical of the common wish of governments to ‘release the shackles’ of the rule of law in situations seen as emergencies – to rule without open, calculable rules, to dispense with safeguards of procedural fairness, suspend habeas corpus, diminish or discard the ordinary protections and contestatory opportunities traditionally associated with legal hearings. Such ambitions, even when well-motivated, pay no heed to the positive, enabling, competence-protecting role of the rule of law, and particularly to the dangers of panicked flailing about, overinclusion, plain unaccountable incompetence, ignorance, and lack of exposure to tests of the reliability of information, that often attend the acts of power-wielders acting in secret and on the fly.
Unfortunately, Holmes insists, “defenders of unchecked (or only weakly checked) executive discretion in the war on terror typically ignore the liberal paradox that constraints can be empowering, and that legal and constitutional restraints can increase the government’s capacity to manage risk and crisis”. To ignore this paradox is also to misunderstand the powerful constructive significance of the rule of law. Yet “[t]o reject the rule of law is reckless because it frees the government from the need to give reasons for its actions before a tribunal that does not depend on spoon-fed disinformation and is capable of pushing back. A government that is not compelled to give reasons for its actions may soon have no plausible reasons for its actions”.
Too often, defenders of the rule of law feel pressure to choose between effectiveness in defense of security, on the one hand, and what can be portrayed as effete and pedantic concern with civil liberties, that our enemies will exploit to do us in, on the other. It is Holmes’ singular achievement to show that this apparently irresistible conflict is often quite spurious.
Feb 7, 2011 Caroline Bradleycorp
Natasha Affolder,
The Market for Treaties, 11
Chicago J. Int’l L. 159 (2010), available at
SSRN.
The transnational transmission of risk is increasingly visible as a subject of policy debate, from transnational terrorism to global warming, from food safety to the financial crisis. These risk transmissions involve more fundamental security risks: for example, the global financial crisis has led to violent protests; low-lying states are threatened by rising water levels; populations facing issues of food security also have implications for security and stability more generally. As these risks become increasingly recognized, international and transnational law, and also international standards, are increasingly relevant to US-based businesses. Private firms are affected when states enact and propose rules to address risks to global security, such as the SEC’s recent proposals for disclosures about the use of conflict minerals.
Our standard model of the impact of treaties (and agreements setting non-binding standards such as those developed by the Basel Committee) on non-state actors involves implementation through domestic legislation. However, in this article Natasha Affolder argues that corporations engage with environmental treaty norms in ways that this standard model fails to reflect. Instead, corporations interact with treaty norms directly and via the transnational standard-setting process. Thus, she challenges the traditional model of treaty implementation and the usual separation between public international lawyers and scholars of private governance. At the same time her article has implications for those of us who study the legal environment within which businesses operate, and illustrates a complex set of interactions between governmental and non-governmental bodies around environmental regulation and practices.
Affolder suggests corporations’ interactions with and translations of treaty norms may in fact produce changes in the underlying treaty obligations. In some cases corporate action may undermine treaty commitments:
In translating treaty norms for corporate use, companies cherry-pick among treaty provisions, interpret treaty commitments in their least onerous forms, and obscure the ways in which corporate activities impede treaty implementation by selectively reporting on instances where corporate policies and actions advance treaty norms.
But in some contexts, Affolder recognizes that corporate action may “lead to stronger and deeper implementation of treaty norms.”
The article focuses on environmental treaties, although Affolder suggests that the implications of “corporate channeling of treaty meanings” are broader. She would extend the implications to human rights and labor, and I think that her work is also relevant to financial regulation. The global financial crisis led to new efforts to reform financial regulation among domestic, regional and international policy-makers. The Basel Committee has developed Basel III , the EU is reforming its structures for financial regulation, and the US enacted the Dodd-Frank Act. But financial firms and the trade associations which represent their interests are also involved in developing the new rules, through efforts to lobby across borders, arguing that rules applied in one jurisdiction should not be more onerous than those in others, and through the development of private standards. In October, staff of the IMF wrote that “private sector ownership of the financial reforms will be key to the successful implementation of the new rules”.
Affolder’s article is important, and nuanced. Corporate action in translating and implementing treaty provisions is neither entirely positive, nor entirely negative. Affolder does not offer a new theory — but this is the point: she pushes us to face the complex and multivalent facts about the interactions between business and law in a world of multi-level rules.
Feb 3, 2011 Richard Pierceadlaw
David Zaring first makes two contributions to the growing empirical literature on judicial review of agency actions and then suggests a dramatic change in doctrine in light of his findings. Based on a study of 226 cases, Zaring found that courts uphold about 70% of agency actions when they apply either the substantial evidence test or the arbitrary and capricious test to agency findings of fact. He then combined his study with over a dozen other empirical studies of judicial review of agency actions to create a meta study of 5081 cases.
In his meta study, Zaring found that courts at all levels uphold about 70% of agency actions no matter what doctrine a court applies. Since choice of review doctrine has no apparent effect on the outcome of a case in which a court reviews an agency action, Zaring argued that courts should simplify review doctrine by replacing the six tests courts now apply with a single simple test—a court should uphold any reasonable agency action.
When I first read Zaring’s article, I found his proposal compelling. It doesn’t make a lot of sense for courts to expend a lot of energy deciding which of six review doctrines to apply in a particular case if a court’s choice of review doctrine has no effect on the outcome of a case. On further reflection, however, I realized that Zaring’s proposed test is incomplete. It is devoid of content unless it is coupled with some set of criteria for determining what makes an agency action reasonable or unreasonable.
If we step back and look at the six review doctrines courts now use in the aggregate, it is apparent that a reviewing court considers three factors in deciding whether to uphold an agency action—(1) the relationship between the action and the statute it purports to implement, (2) the relationship between the action and the available evidence that is relevant to the action; and, (3) the quality of the reasoning the agency uses to link its action to the relevant statute and the available evidence. Each of the six discrete doctrines courts say they apply is just a reference to one or more of those criteria.
I continue to find Zaring’s proposed change in doctrine compelling, but it would have to be restated in a longer form to be susceptible to judicial application. Thus, courts might replace the six doctrines they now use with the following single doctrine—a court will uphold an agency action if the agency explains adequately why the action is consistent with the statute it is implementing and why it is supported by the available evidence relevant to the action.
Of course, courts would then need to explain the manner in which they evaluate the adequacy of the agency reasoning process, the manner in which they evaluate the adequacy of the relationship between the action and the statute it implements, and the manner in which they evaluate the adequacy of the relationship between the available evidence and the action. The resulting doctrinal environment might be an improvement over the existing doctrinal environment in the sense that it is a more accurate and a more complete description of the role of a reviewing court. I doubt, however, that it would represent a simplification of existing doctrine. It might more accurately be characterized as a restatement of existing doctrine.
Whether you call Zaring’s proposal a simplification or a restatement, it is appealing. The article is well worth reading independent of his proposed change in doctrine. It is packed with data, analysis, and useful insights.
Jan 31, 2011 Richard Rosslegalhist
Lauren Benton is well-known as one of the leading scholars exploring the relationship between law and colonialism in a world history perspective. Her prize-winning 2002 monograph, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900, rested on the considered belief that early modern and modern empires were everywhere marked by significant legal pluralism. Yet legal pluralism took different forms. Early European settlements in the Americas, Africa and Asia began with a “multicentric legal order;” a robust pluralism characterized by multiple systems of law and tensions among semi-autonomous European and indigenous jurisdictions, associations, and corporations exercising their own prerogatives. “Legal jockeying” among settlers and between Europeans and indigenous leaders invited the colonial state to assume a superintending role over competing private and quasi-governmental jurisdictions. A “state centered legal pluralism” thus emerged in many areas of the world.
The purpose of the book was not to better illuminate the history of a particular country or region. The book was problem-driven: at the center was the transition from multicentric to state-centered legal pluralism. Her expert deployment of case studies from four continents raised the stakes, suggesting the importance of a phenomenon that recurred in empires throughout the world. Her global perspective also allowed her to identify the causes of the transition, an endeavor harder to do and perhaps less convincing when confined to one country or empire.
Benton’s methodological commitments, along with her customary imagination and erudition, are on display in her new monograph, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900. She rethinks the relationship between law, geography, and jurisdictional politics in European overseas empires using a wide range of case studies drawn from the French, Portuguese and especially the Spanish and British empires between the fifteenth and nineteenth centuries. Her global approach allows her to contest two well-established narratives in imperial and legal history. To begin with, historians commonly assume that European empires wished to assert control over distinct territories defined by maps. Imperial administrators gradually, with fits and starts, enhanced the ground-level effectiveness and geographical reach of their rule. But Benton’s close look at geography and jurisdictional politics calls into question this familiar story about the “rationalization of space” (p. xii). Though empires claimed territory defined by charters and treaties, they typically controlled “narrow bands, or corridors, and . . . enclaves and irregular zones around them.”(p. 2) These “lumpy” empires were made up of nodes and pathways—sea lanes, trading posts, missions, towns, and garrisons—each maintaining uncertain and changing legal relations to the metropole. Imperial authority was patchy: strongest in corridors and enclaves and weaker elsewhere.
Law traveled abroad with the imperial administrators, settlers, merchants, and warriors who used it to claim power and resources and justify their actions. The specific features of water and land that they encountered shaped the continuous disputes about the nature and limits of delegated authority and of the rights of European subjects living overseas. Benton considers rivers, oceans, islands, and mountains. Expeditions up rivers bred strikingly frequent charges of treason amid temptations to throw off kingly authority and plunder resources. Treason trials could be used to define the spatial boundaries of empire and the terms of delegated authority. Oceans could not be owned. Yet European states assumed that they could assert jurisdictional primacy not only over friendly ports, but over sea lanes through the water. As a result, merchants and even pirates engaged in “legal posturing.” They self-servingly described actions in ways that maximized advantage in a maritime world of tangled jurisdictional claims by rival powers. Islands used for military garrisons, raiding stations, and convict transportation suffered from unfree labor and harsh discipline. Fearing insurrection on their isolated outposts, commanders frequently exercised a cruel authority. How could the brutal mores of these “anomalous legal zones” be confined to prevent infection of the metropolis and the rest of its empire (p.165)? Mountainous regions had long struck Europeans as “primitive” zones where “backwards” people lived by archaic law. Imperial officials were all too ready to see colonial mountainous areas as insular, quick to violence, and resistant to European law; these places fell under only a constrained metropolitan quasi-sovereignty. Along with islands, rivers, and oceans, mountains brought to the foreground legal challenges and jurisdictional conflicts that complicated the rule of lumpy empires. Benton shows that geographical features posed a challenge to all empires, who responded in similar ways. Her focus is more on variation within empires than between empires.
Benton also challenges a second familiar story, the one about sovereignty understood as control over territory and borders. Historians typically assume that between the sixteenth and eighteenth centuries European states haltingly consolidated sovereignty. In this picture, empires marked by composite rule and semi-autonomous jurisdictions lagged behind metropoles but likewise moved towards fuller territorial control. Benton questions this trajectory. Empires often emphasized symbolic display and management of trade over control of borders. They experimented with plural legal systems and complicated schemes of partial sovereignty. And they experienced the continual emergence of “legal and geographic variations,” including new island work camps and penal colonies, trading enclaves, and loosely aligned jurisdictions (p. 282). Benton proposes a “more open-ended narrative about the persistence of empires and states composed of varied and sometimes-overlapping fields of partial sovereignty” (p.291) On this view, divided sovereignty was not a necessary evil of young colonies later overcome; and colonies did not routinely become better incorporated into sovereign states.
Benton uses, as a foil, accounts of imperial history that distinguish between a European zone of law and extra-European regions of lawlessness or “exception” (to use Carl Schmitt’s terminology). Where these scholars see the suspension of law, Benton labors to find “patterned variations of legal ordering” (p.287). Though often brutal, her explorers, pirates, settlers, and commanders creatively cited legal concepts to support economic and political claims, interact with indigenous people, and define their position in turbulent overseas lands. Out of this effervescence of claim-making and “legal posturing” arose principles governing land dispossession, prize law, slavery, labor discipline, and police regulations that would enjoy a long, dark future in overseas colonies. But those who would look for legal invention in places of exception will eventually encounter a familiar problem in legal philosophy and “rule of law” theory: Can every contention by pirates, captains, and wielders of the lash be styled a “legal” claim? Is there a point where, finally, will and rationalization become too brazen to be dignified as a variant understanding of law? To extend Benton’s perspective further than she does in her sober monograph would heighten the force of these perennial questions. One may accept the challenge of these questions and yet preserve Benton’s account by reading it with an ironist’s spirit: legal regimes emerged out of self-interested legal posturing repeated often enough to turn cynicism into custom.
