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Abstracts

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Yale Law School
Doctoral Scholarship Conference

Continuity and Change:
Interrogating the Dynamics of Law and Transformation

Abstracts

  1. Gustavo Sampaio de A. Ribeiro, No Need to Toss a Coin: Conflicting Scientific Expert Testimonies and Intellectual Due Process (Harvard Law School)
  2. This paper focuses on the question of how decision makers with no relevant scientific background can (if at all) legitimately evaluate conflicting scientific expert testimonies of and determine their relative reliability. Skeptics argue that non-experts can never reach justifiable conclusions regarding the merits of conflicting expert testimonies because they lack the fundamental epistemic capacity to make such judgment calls. In this paper, I draw on works on epistemology, philosophy of science, science and technology studies, legal theory, and philosophy of practical reasoning in order to scrutinize recent proposals to solve the problem of conflicting scientific expert testimonies. Addressing this question is of ultimate importance due to the idea that immanent in the idea of rule-of-law there is an intellectual due process norm, which articulates that epistemically arbitrary legal decisions are also not legally justified. This paper is divided in two parts. In Part I, I develop the basic philosophical inquiries underlying the debate about expert testimony. In particular, I first elaborate on the philosophy of testimony, and its epistemic justifications, then move to the idea of epistemic deference, and finish with philosophical and social studies on expertise. Part II presents the problem of conflicting scientific expert testimonies and analyzes recent attempts to solve it as formulated by Ward Jones,
    Alvin Goldman, and Scott Brewer. I argue that there is no single criterion (or set of criteria) upon which the non-expert could rely in order to make a rationally justified decision in each and every case he faced conflicting scientific expert testimonies. The alternative view here defended is to stop looking for an epistemic panacea and accept the idea that testimonial reliability operates differently within different kinds of testimony – and differently within the same kind of testimony at different times.

  3. Baek Buhm-Suk, Why have we failed to establish regional human rights institutions in Asia? The development of international human rights law and resistance against it (Cornell Law School)
  4. Since the adoption of the Bangkok Declaration in 1993, there have been numerous initiatives to establish regional human rights institutions and charters in Asia. All efforts, however, have been impeded by deep cultural, political, and historical issues. Examining this problem is the starting point of my paper and the main question that should be asked is why Asia has not had regional human rights institutions (RHRIs) so far.

    To answer this question, first, I will review all the major initiatives to establish RHRIs in this region. These are examined in chronological order to see what items have been discussed, what has been a key development in their discussion, whether they have evolved toward realizing the establishment of RHRIs and lastly, how their activities can be evaluated. Through the analysis on all the major initiatives for setting up RHRIs in the Asia-Pacific region, I, then, will provide five main reasons that have hindered the establishment of a regional human rights system in Asia. It includes many Asian governments’ resistance to change: that is, they reject international human rights law as a Western concept and thus argue that it is inapplicable to the Asian context. After examining the five major reasons, I will conclude that all those obstacles are the result not of a different understanding of fundamental human rights under the already existing international human rights legal system, but mainly of political considerations. Therefore, I will ask who benefits from these assertions behind the rejection of RHRIs in the region. Those who are most vulnerable to violations of their fundamental human rights and find it hard to seek the protection of their rights both at the international and the national level are definitely not the ones who will benefit from the absence of RHRIs in the region.

    RHRIs can make a meaningful difference to the human rights situation in the region as a channeling institution to reflect regional specificity and particular needs, and, at the same time, monitor individual state’s practices to meet international standards on human rights. The analysis of the identified obstacles will lead us to the establishment of RHRIs in future, which can be powerful tools for human rights by translating Asian countries’ commitment on human rights into real improvements for the people in this region.

  5. Or Bassok, The Two Countermajoritarian Difficulties (Yale Law School)
  6. In recent years, the countermajoritarian difficulty has split into two. According to its traditional version, the difficulty arises when unaccountable Justices strike down statutes passed by electorally accountable branches of government. According to the newer, literal, version, the difficulty arises when Justices strike down statutes that are supported by the majority of the public according to public opinion polls. By explicating the difference between the two versions of the difficulty, I expose a shift in American constitutional scholarship. For many years, scholars conflated the two difficulties under one banner and offered normative justifications for the Court’s countermajoritarian authority. In recent years, many constitutional theorists, oriented toward social science, attempt to dissolve the literal countermajoritarian difficulty by showing that the Court is not countering the majority will but following it. Alexander Bickel, who gave the countermajoritarian difficulty its catchy name fifty years ago, could not have been aware of this split. However, I show that he devised a different tactic to confront each of these difficulties. Before concluding, I examine the relevancy of the distinction between the two countermajoritarian difficulties for the discussion of the rise of judicial power worldwide. While the discussion of the traditional version may indeed be a unique American obsession, the literal difficulty is very much present in discussions in other countries as well.

  7. Eugenio J Cárdenas, Globalization of Securities Enforcement: A Shift towards Enhanced Regulatory Intensity in Brazil’s Capital Market? (Stanford Law School)
  8. Are emerging capital markets shifting toward enhanced regulatory intensity in the enforcement of their securities laws under today’s global context?  The study only begins to explore this complex puzzle of globalization, corporate law, and financial development. It does so with a focus on the emerging Latin American region, particularly Brazil’s securities market.

    As a result of globalization, legal convergence among securities markets became a recurring phenomenon. In this convergence process, the enforcement of corporate and securities law gained particular relevance for its potential to ensure investor protection and, in turn, capital market and economic growth. Driven by the mentioned global convergence phenomenon, a discourse on financial regulatory intensity was triggered within the U.S. academic finance literature, setting forth the ideal of exploring the intensity with which jurisdictions should pursue the enforcement of their financial regulation to achieve development.

    In that spirit, this paper briefly touches upon Brazil, the leader among Latin America’s financial systems. It glances into its securities enforcement framework, aiming at identifying and reflecting upon selected instances that may suggest enhanced regulatory intensity during the past decade. The aforementioned, on account of an ongoing wave of legal and institutional reform dating back to the turn of the century, resulting from competing dynamics between incumbent players of Brazil’s securities market opposing reform, and global forces demanding corporate law and governance. To approach the question posed, the study specifically inquires on both the extent to which Brazil’s securities market appears to have: i) adopted a more robust institutional design of enforcement; and ii) boosted implementation.

    Preliminary evidence identifies a transformation of Brazil’s securities enforcement system during the past decade, both in terms of new institutions and enforcement practices, and of increased enforcement action. The groundwork reveals that Brazil now embodies features that are reminiscent of enforcement systems in developed markets – like the U.S. model. These include, among others, a “multiple-enforcers” approach – involving active collaboration among public, private, and self-regulatory, enforcement channels; and the evolution of Brazil’s Securities and Exchange Commission (CVM) into becoming an enforcement-driven and politically independent agency, with an enhanced tool-kit to target serious wrongdoing.

    The study seeks to contribute by advancing the knowledge on securities enforcement systems across jurisdictions. It further aims at shedding light on how legal systems undergo transformation, in terms of the interplay between social change, legal cultures, and institutions. Specifically, it showcases how emerging global markets may be shifting toward enhanced securities enforcement as they become aware of its potential benefits for their development.

  9. Aparna Chandra, The Contours of “Complete Justice”: Article 142 and the Shifting Forms of Adjudication in the Supreme Court of India (Yale Law School)
  10. Adjudication serves many purposes, including those of dispute resolution and norm creation. How, if at all, should courts prioritize amongst these ends? This has been a perennial question before legal systems, especially those based on judicial stare decisis where the juris-generative aspect of adjudication has had long-standing institutional recognition. This issue is (or should be) of increasing concern in India in light of the frequent invocation by the Supreme Court of its powers under article 142 of the Constitution, which allows it to pass any order for doing “complete justice” in a cause or matter pending before it. This virtually untrammeled power has been increasingly resorted to by the Court to (self-professedly) disregard the legislative framework in order to “settle” the dispute between the parties; to use the Court has a forum for arriving at a consensus amongst the parties as to the appropriate course of action, again unrestrained by substantive and institutional limits on the powers of the Court; and often (I argue) as a collusive effort between the executive and the judiciary to bypass the legislature as the primary organ for plenary law-making, by using the power to do complete justice to  “enact” law to govern an unoccupied legislative field till the legislature chooses to act. Such recourse to article 142 calls to question not only the meaning, purpose and place of adjudication within the Indian legal system, but also fundamentally competing notions of justice- individual justice between parties on the one hand and systemic justice under law on the other.

    Recourse to article 142 has increasingly gained ground in India but has not been studied or theorized so far. In this paper, I will begin by mapping the shifting terrains of article 142 jurisprudence, using this to discuss larger issues implicated in the recourse to this provision especially regarding the Supreme Court’s institutional role within the constitutional scheme of governance, and in public-law adjudication more generally. I will also critique the practice, highlighting its pros, but also questioning its validity as a form of decision-making, especially in its ability (or lack thereof) to serve its function of giving content to public values through adjudication, and thus the capacity of adjudication itself to function as a tool for social transformation.

  11. Conor Hanly, The Rise of Summary Jurisdiction in Victorian England: Juvenile Offenders  (Yale Law School)
  12. At the beginning of the nineteenth century, the complete panoply of the criminal justice system was routinely deployed to deal with even minor property offences.  Critics noted that the cost of such cases often exceeded the value of the property involved, and offenders were frequently held on remand for periods that were in excess of the sentence they would receive if convicted by a jury.  In tandem with jury trial, however, another model of criminal prosecution existed that was to assume ever greater importance as the nineteenth century progressed: summary trial before a Justice of the Peace at a petty sessions.  Summary trial was faster, cheaper and more efficient than jury trial, and Blackstone warned in the eighteenth century of the potential that summary trial had to supplant the latter.  The experience of the nineteenth century was to prove this warning prescient: by the end of the century, vastly more criminal charges were disposed of through summary trial than through jury trial.  The process by which this change was brought about is the subject of this paper.

    The innate British affection for jury trial made extending summary trial to even minor felony charges problematic and took thirty years to accomplish.  A bill introduced in 1839 that would have placed all minor thefts within the jurisdiction of the petty sessions was comprehensively defeated, as an assault on the rights of Englishmen. Reformers then changed their tactics.  Efforts were made to improve the operation of the petty sessions, to make them more “court-like”.  Simultaneously, reformers focused their attention on juvenile offenders, and presented summary jurisdiction as a means of protecting these offenders from the corrosive effects of the criminal justice system. Legislation enacted in 1847 permitting the summary trial of under-14s charged with minor thefts required that they be informed of their right to choose jury trial.  Significantly, few did so – even the principal beneficiaries of jury trial were content to forego that privilege in favour of a faster trial and lesser punishment.  This experience proved that summary jurisdiction could be safely extended to all minor thefts, which was done in 1855.  The effect of this legislation was an immediate and consistent decline over the rest of the century in the number of cases going before a jury.  As Blackstone had warned, summary trial had supplanted jury trial.

  13. Helen Eenmaa, Normative Differences Among Forms of Liability and the Limits of the Economic Analysis of Law (Yale Law School)
  14. According to a familiar line of criticism, the economic analysis of law fails to account for the normative differences among various forms of liability like punishments, sanctions, duties of repair, and taxes. My paper aims to explain why this is a problem for the economic analysis of law, how it is particularly pressing in the area of tort law, and in which manner the economic analysis could respond to it. The question that I am inviting to think about is the following: can the economic analysis meet the criticism or does it have to bite the bullet?

    Let me spell out the essence of the problem by reference to the debate about the essential features of tort law. I am particularly relying here on the work of Jules Coleman. On the modern understanding, the principle of corrective justice explains the central features of a large area of our private law and particularly tort law. According to the principle of corrective justice, an individual has a duty to repair the wrongful losses that his conduct causes. Wrongful losses are those that one brings about by breaching the duty of care. In other words, when someone fails to discharge his first-order duty of care and thereby causes a loss to someone whom he owes the duty of care, he thereby incurs a second-order duty to repair the loss. He owes this duty specifically to the person to whom he owed the duty of care.

    The economic analysis of law offers a different explanation of our legal practices: the central features of tort law are not particular duties or losses that individuals incur in bilateral relationships, but the social problem of accidents in general and the minimization of the costs that accidents impose on a society in particular. From this standpoint, tort liability is primarily a mode of allocating the costs of accidents and a mechanism for optimal deterrence. While the theories of corrective justice distinguish the particular form of liability – the duty of repair – as an essential feature of tort law and show that tort law gives rise to that duty because it embodies the principle of corrective justice, then the economic analysis views liability as a tool for efficiency. The selection of the tool depends primarily on the purpose for which it is used. Accordingly, in case of economic analysis, the choice between different forms of liability depends of how suitable they are for achieving a certain economically justified end.

    Our current legal practices impose various duties. Duties of repair in tort law can be discharged in a number of ways, some of which make these duties distinct from the forms of liability under criminal law, administrative law, and tax law. As Coleman points out, while in torts, the duty to pay compensation can be discharged by third parties or guarded against by purchasing insurance, then the possibility to discharge one’s duties with the help of third parties is not open in case of criminal liability. Similarly, there is a difference between the duties of repair and liability for tax payments. All of these forms of liability influence rational decision-making and give incentives for action. At the same time, the duty of repair as a form of liability is distinct from the forms of liability under criminal law or taxation, as the grounds of one’s duty of repair are not the same as the grounds for taxation or criminal liability. Because liability in different areas of law is founded on different normative theories, we have to acknowledge that there are important normative differences between various forms of liability.

    This acknowledgement creates a burden on the economic analysis of law. According to the claims of the economic analysis of law, all liabilities are costs and there is no normative difference among punishments, sanctions, duties of repair, and taxes. However, if the above considerations are correct then it would not be reasonable for us to sum up all liabilities as simply costs of one or the other kind, because this does not reflect the distinctions that we make between various normatively different accounts of liability. It rather seems that whenever we make recommendations with regard to the selection of the form of liability in the framework of the economic analysis, we need to show not only that the particular form of liability is the most efficient means for a particular end, but also that the normative basis of the form of liability is economically justified.

  15. Hano Ernst, The Curious Case of Continuing Reform of Personal Property Security in CEE Countries (University of Zagreb)
  16. Law and development scholars have been searching for some time for links between legal rules and growth, trying to identify legal principles responsible for economic prosperity. Personal property security has consistently been labeled a top priority for legal reform, grounded in the general belief that collateral facilitates access to credit, which in turn supports the development of a deep financial sector. This paper analyzes the reform of secured credit regulation in post-socialist countries in Central and Eastern Europe (CEE) during the last fifteen years, against the backdrop of recent reform initiatives in Western Europe (WE), specifically France and the UK, as well as the aftermath of the economic crisis. In the pre-crisis era, CEE countries conducted varying degrees of reform, ranging from extensive to modest. Although economists have struggled with establishing genuine causation between collateral regulation and credit availability, some scholars believed that reformed CEE law would ultimately outshine WE systems, which refused or limited their reform agendas. However, reconstructions of these weak and unprepared legal and financial systems have been particularly challenging.

    In examining the causes of such difficulties, I argue that a lack of judicial reforms as well the lack of models has stymied progress. In particular, because WE systems, to which CEE countries are historically linked, lacked off-the-rack models void of the historical baggage, CEE countries couldn’t use legal transplants, nor could their WE-affiliated banks use experiences harvested in their home countries. The relatively short time-span, into which the reform was forced, was additionally crowded with reforms of almost all other areas of the law, pressured by potential EU accession, as well as a violent crisis. CEE countries all experienced post-reform rapid credit growth, and mid-crisis credit downturns, yet it is extremely difficult to discern whether these events are at all linked to preceding reforms. In the post-crisis environment it is still hard to detect whether recovery is slower due to legal constraints or extraneous crisis-mitigating policy measures. In response to ideas of further reforms, or their forestallment, inspired by relatively recent WE initiatives, I explain how such attitudes don’t offer guidelines for transitional economies because of their grip on age-old financing patterns and subsequent judicial landscaping. Although they deserve kudos for their analytical value, such proposals tackle the challenges specific to their own legal systems, which might not be obvious to the casual observer.  

  17. Sabrina Germain Chronic Disease and the Law: Just Distribution of Health Resources for Chronically Ill Employees (Cornell Law School)
  18. The purpose of this paper is to gauge how theories of distributive justice and chronically ill employees can together change insurance regimes. The importance insurance constrains have in constituting social life, the elements of governance it sometimes triggers and its equalizing function shall be underlined in parallel with the examination of distributive justice principles.

    According to the World Health Organization1, the threat posed by chronic diseases has reached a point of no return and now sits at the center of the political, economic, social and legal spheres. Numbers of chronically persons are spiking in industrialized countries and will continue to grow at a fast pace. At the dawn of the 21st century, more than ever before legal questions need to be resolved as to what are the prerogatives of business units, their duties, and above all the rights and alternatives that the law offers to chronically ill employees.

    Employment problematics are intrinsic to the insurability of chronically ill persons, as corporations are often primary insurers of their employees. Narrow insurance pooling systems have triggered the direct exclusion from coverage of chronically ill persons, reinforcing business units’ and employers’ power to make coverage scarce.2 This paper aims to reconcile the fundamental and almost irresolvable contradiction between society’s need to establish equity in the provision of health care, and the insurance industry’s need to safeguard its economic profitability and efficiency.

    This paper will present a survey of distributive justice theories relevant to the distribution of health care, in hopes of synthesizing a more just employer-based insurance model, better suited to fulfilling the insurance needs of the chronically ill.

  19. Hanna Azbaha Haile, Climate Change Induced Migration: Legal and Practical Challenges to International Law (Cornell Law School)
  20. Notwithstanding mitigation efforts, increase in average global temperature is inevitable and can intensify environmental disasters, including drought, rising sea level and shoreline erosion. These ramifications will especially have their toll on those with the least adaptive capacities. Climate change hotspots include the Arctic, Africa, small Island Developing States in the Pacific, Asian mega Deltas and the Himalaya region. As climatic disasters increase in number and magnitude people are forced to move from their usual places of habitation. Although much of the displacement is expected to occur within national borders, massive regional and international migration will transcend national borders. The ecological, economic and social impacts of climate change-induced migration will in turn jeopardize the enjoyment of human rights, development and security of the migrating community as well as the host community, which poses a unique challenge to international law. International law as it stands is inadequate to cater to the challenge presented by such migration.

    People displaced because of climate change do not fit within the definition of refugee as per international refugee law because they have not been persecuted and they do not constitute a racial, religious or social group. Moreover since international refugee law is meant to tailor to the needs of a limited category of persons, its sufficiency to deal with this is questionable. International environmental law and international human rights law are equally lacking in that they do not have any provisions that address this issue.

    In light of this gap in the law, this paper will discuss three possible solutions: creative interpretation of existing treaty law, harnessing current customary international law, or the adoption of a new instrument. This can be in the form of a stand-alone instrument or one linked to an already existing instrument such as the Refugee Convention or the United Nations Framework Convention on Climate Change. Given the myriad of issues involved, the adopted response should be interdisciplinary, borrowing normative principles from human rights, humanitarian law, international environmental law and refugee law with guarantees of assistance and shared responsibility at the heart of the solution.

  21. Han Liu, Land Aggregation and Secession in the Rise of Territorial Sovereignty (Yale Law School)
  22. The problem of secession in contemporary political and legal theories presents itself as a conflict between self-determination and territorial integrity. This paper show that it has not always been so in the history of the modern state since 1648. Before the modern revolutions, the element of self-determination was absent. Territory was treated largely as the property as the sovereign king. With various legal means including conquest and dynastic inheritance, the sovereign kings aggregated land and augmented his state territories. Secessions were rare during that time.

  23. Anne-Claire Jamart, Internet Rights in the Making: Continuity and Change in Internet Governance (Cornell Law School)
  24. In Code, Professor Lessig rejected the cyberanarchists’ view of the Internet as “an act of nature,” and emphasized that the Internet is the result of man-made decisions on the underlying code. Although the Internet as originally designed, that is decentralized, had set the conditions for freedom in cyberspace, Professor Lessig reminded us that there were no assurances that it would remain as such. In particular, he warned of the negative impact that governments and businesses could have on this architecture of freedom. Ten or so years later, with two billion users worldwide, it is important to reassess Professor Lessig’s claim. Is there now more certainty that the Internet will remain open and free than ten years ago?

    In this paper, I would like to argue that the Internet, as originally designed, i.e. decentralized, has already profoundly affected expectations of freedom that societies may have, and that such expectations have in turn permeated the judicial, legislative and political spheres. Professor Balkin, as early as 2004, argued in favor of a new conception of freedom of speech that would reflect the new realities of the digital age. The Arab Spring and the mobilization accelerator role that the Internet, and in particular social media, played have only proven him right. This is hopefully paving the ground for a “ratchet effect,” meaning that current attempts, both nationally or internationally, to move towards more control over the Internet and assertions of sovereignty will face more and more obstacles (judicial, legislative and political) so much so that such efforts might ultimately fail. It is important to note here that such attempts are not exclusively made by undemocratic governments, but that each and every state faces the challenge of reconciling diverging forces pushing in the direction of more freedom on the one hand, and more control, including for very legitimate reasons such as law enforcement or the fight against child pornography, on the other hand. 

    My analysis will be based on recent decisions by highly-influential courts at either the national or regional level, such as the Constitutional Council in France or the Court of Justice of the European Communities, such decisions showing judges’ concerns for the fundamental rights of Internet users. I will also review principles elaborated outside of courts, usually with input from governments, such as the recent OECD Principles, as well as the role of international organizations, such as the UN, with Special Rapporteur Franck La Rue’s report on freedom of expression and the report by the OSCE representative for freedom of the media. I will evaluate whether these rights are merely extensions of known rights or should be considered as new rights and the extent to which they address the issue of the Internet’s architecture. I will conclude with a discussion of hurdles to overcome before the openness and freedom of the Internet are fully secured.

  25. Nkatha Kabira, A New Dawn: Reflections on Kenya’s New Socio-Legal Order (Harvard Law School)
  26. “Happy New Dawn!” This is the phrase Kenyans used to express their joy when the new constitution was passed on August 4th and later promulgated into law by the President on August 27th. The President of the United States, Barack Obama referred to it as the “New Moment of Promise.” These two phrases encapsulate the spirit of the Kenyan people regarding the new legal order as of August 2010. The proverbial new dawn symbolized a shift from a period in Kenya’s constitutional history where the story about who Kenyan people were and what they stood for was written and understood through colonial lenses to a period where Kenyans had rewritten their story in order to reflect their actual lived realities.

    The constitution was born out of the need to ensure that all Kenyans would be part of the process of telling a different story about how they wanted to be organized. It was a people driven-process that entailed several stages of civic education, collection and collation of views. The constitution of Kenya review process was a process like no other. It left no table unturned. From the structure of the state to the structure of the household. From the Judiciary to the Executive. From Public Finance to Private Finance to Land to health to water. The process interrogated every social, economic and political process. It questioned everything. It sought to overhaul everything.

    After many years of intense negotiation among political parties, organs of the civil society, religious groups, women’s rights organizations, youth and other stakeholders, a new social compact was finally adopted and promulgated into law. This constitution is the final product produced by the Government and ratified by the people following discussions, negotiations and legislative amendments that spanned from the 1990s to 2010. The new constitution is a negotiated document that is expected to mediate the diversities that exist in the Kenyan society.

    During the entire process of reviewing of the constitution, the people presented their views in their own languages, the women and human rights organizations presented their views in their own language, the Muslims, the Christians, the disabled persons, the pastoralists, the lawyers and so on.

    As a result, the language of production of the new constitution is very different from the language of distribution. The people produced this constitution but the challenge of implementation lies in the legal discipline. For a long time, legal education and training in Kenya has principally focused on English back letter law. The legal discipline continues to operate as a one-dimensional discipline, paying very little or no attention, to the multifaceted intersections between legal and social problems. The new constitution shatters this positivist view of law. The Constitution shakes up all existing laws, institutions and legal frameworks. There are so many laws that need to reviewed, revisited, realigned, streamlined, revisited, created, recreated and re-imagined. It follows that legal education and judicial training also needs a face-lift. Legal education in Kenya is in dire need of a new vision and a new philosophy.

  27. Lisa Coleen Kerr, Solitary Confinement and the Question of Judicial Control of Punishment  (NYU Law School)
  28. The decision to impose solitary confinement on a prisoner can profoundly intensify the experience of imprisonment, yet this is a decision over which today’s courts exercise limited oversight. Recently, courts have insisted on procedural protections around the way that ‘solitary’ can be imposed, and have ordered that it not be used on mentally ill prisoners. But courts still do not exercise principled or comprehensive control over the potentially indefinite imposition of solitary confinement on ‘ordinary’ offenders. The current lack of judicial oversight is striking given how conceptions of solitary confinement have changed over time. In early American usage, solitary was thought to induce contemplation and reform in its subjects. For that reason, it was a penal technique that matched the theoretical and judicial understanding of legitimate punishment. The contemporary practice was revived in the 1980s amidst new concerns about control and order within prisons and following a period of significant change in penal sensibilities. The modern form has been delivered in ways that defy standard sentencing rationales such as proportionality or rehabilitation, yet courts grant considerable deference when reviewing its use.

    This paper shows that the legal recognition and protection of prisoners’ rights is not a story of continual expansion. The growth of the rule of law or rights protection in this area has been an uncertain process, with the loss of some forms of judicial governance and the emergence of others. With examples from the U.S. and Canada, the paper demonstrates that the judiciary regulates certain structural features of imprisonment and responds to problems of individual variation in some respects, but that there is the potential for more principled and reasoned control by judges over the central features of state punishment. The paper concludes that courts ought to subject prison practices to more robust review, whether at sentencing or upon constitutional review. The discussion of solitary confinement can be transplanted to many other features of prison life that unfold according to the preferences of penal administrators and the idiosyncrasies of prisoners, rather than according to law and an acceptable rationale for punishment.

    The paper is part of a larger doctoral project that examines the potential for the judiciary to stipulate and control the qualitative features of imprisonment, which, while relevant to the severity of sanctions as delivered, are matters typically left to penal authorities. One of the implications of the paper’s argument is that sentencing theory, as a field, has paid insufficient attention to the delivery and precise character of sanctions, which are typically regarded as administrative rather than normative matters. In the case of the use of solitary confinement, penal administrators have the power to impose a more severe punishment than that contemplated by a sentencing court, thereby potentially nullifying the court’s endeavor to adjudicate culpability and impose a fit sanction.

  29. Sergio Latorre, The Hidden Legal Infrastructure of Land Ownership: An Aesthetical Analysis of a Public Deed Title in Rural Colombia (Cornell Law School)
  30. The paper tries to trace and link the legal knowledge produced by experts in dealing with laws pertaining to land adjudication to poor peasants in rural Colombia. Drawing upon six months of ethnographic fieldwork, the paper starts by identifying two clear positions in contention in the political spectrum over the adjudication debate:  Redistributionist, which advocates for initiatives towards making peasants land owners; and Market oriented, which argues that it is not peasants’ ownership of the land that is important, but rather to provide employment in rural areas. The paper traces how this political contention has shaped the laws on granting land to poor peasants and has transformed institutional roles in carrying out rural programs.

    The second part contests the idea that law is only a reflection of the political contention in play. It posits that law as a set of specialized and technical knowledge survives this contention.  By focusing on a technology that represents the inner-technical aspect of the law, it shows how a legal document used to regulate the process of granting land, like the Terms of Reference held at the governmental Institute of Rural Development (Incoder) in Colombia, functions as an artifact that tends to dissolve the political conflict over land adjudication into a set of other kinds of technical, legal, institutional and procedural conflicts. Finally, the paper argues that past and present projects of peasant land ownership have failed because they have overlooked the inner-character of the laws pertaining to adjudication, which through the present remain intact.

  31. Karin Loevy, Change and Continuity in Emergencies: A Theoretical Introduction (NYU Law School)
  32. The field of emergencies in public law is routinely concerned with the dialectic relation between abrupt, often revolutionary change and continuous, often conservative attempt to control it and contain its consequences. This paper describes the ways by which the dominant theoretical traditions in the field account for the relations between change and continuity in emergencies. In the extra-legal Lockean tradition it is expressed by the prince’s prerogative power to act against the law in accidents, the historical cases of its post factum ratification and the people’s right to revolt against its misuse. In the neo-Roman Machiavellian tradition it is expressed by the ability to create conservative mechanisms for the move back and forth between normal government for normal times and exceptional government for exceptional times. In the rule of law, legality tradition, it is expressed by a political fidelity to a legal distinction which is available for any exigency. In this tradition, emergencies are opportunities to reinvent, relive or make new sense of that forceful distinction.

    This paper is an introduction, recounting the available frameworks and their distinctive appeal. In my presentation I will illustrate the way they figure (and often collapse into each other) in debates about emergency powers. I will use two very different and historically detached examples: a winter 1827 congressional debate concerning the precedential dangers of providing relief to sufferers of a fire in Alexandria; and a fall 2011 academic panel in Harvard Law School concerning expansion of presidential powers post 9/11. Almost 200 years apart and in a very different institutional context - but the question of the impact of emergency measures on the continuity of the legal and political system is debated on quite the same theoretical horizon.

  33. Patrick Luff, Legal Innovation as Court-Based Risk Regulation (Oxford University)
  34. The appropriate scope of governmental regulation has been a ubiquitous policy debate since the nation’s founding. Since the 1960s, courts have increasingly played a part in the state regulatory apparatus, earning judges and courts the label of “activist” and leading some to decry the intrusion of courts into issues best left to the political branches of the federal government. This line of criticism indicates a failure to appreciate the necessary role that courts play in a decentralized system of government. After the Industrial Revolution, individuals began to look more and more to the state to insulate them from the risks the modern world presented. However, a horizontally and vertically decentralized system of government is fraught with veto points, meaning that the traditional regulatory actors—Congress and administrative agencies—are often unable to address social demands for risk regulation. My dissertation argues that in these cases, courts perform a regulatory-gap filling role. Moreover, because the decision to fill these gaps is a policy choice, my dissertation concludes that the judicial policy-making that risk regulatory gap-filling represents is actually structurally anticipated and necessary given our governmental structure.

    This paper discusses one area of court-centered regulation how it represents judicial policy-making: the adoption of new theories of liability and standards of care. When, for example, a court decides to assume negligence in a particular case under the doctrine of res ipsa loquitur, rather than require actual proof of negligence, it does more than make a decision on a discrete point of law. Instead, such a decision represents a policy choice about how society, through its government, deals with risk. In such a case, the court has decided both the baseline amount of risk individuals should have to bear, and the amount of risk that individuals are allowed to create. If these sorts of decisions, which are the traditional province of the courts, are policy decisions about acceptable levels of risk, then judicial policy choices are more common, less controversial, and more essential to an ordered society than the current literature appreciates.

  35. Itamar Mann, The Legal Structure of Europe’s Human Rights Crisis: A Preliminary Outline (Yale Law School)
  36. In the recent decade, numerous iterations in international law and political theory have celebrated the “disaggregation” of sovereignty. Anne-Marie Slaughter famously championed networks of state and non-state actors who cooperate on a wide variety of cross-border issues: international finance, the environment, global terrorism and organized crime are only a few issues that supposedly underline an unprecedented global inter-dependence.

    While traditional international law imagines rule-making in these areas as a process between sovereign states, Slaughter describes “vertical networks” made of professional communities that interact less formally and more frequently. The foremost example of this is the EU, which ostensibly demonstrates how the “new world order” of disaggregated sovereignty is potentially also a more just and effective one. Other political theorists such as Seyla Benhabib and Ulrich Beck have forwarded variations of a similar vision.

    The literature on disaggregated sovereignty aptly recognizes a radical shift in the structure of international law. But if, as Max Weber had it, sovereignty is a monopoly on legitimate violence, what happens to violence when it too is disaggregated? Much of the relevant literature curiously lacks any real account of such violence. But clearly violence has not simply vanished.
    The paper is an attempt to formulate the relationship between law and violence in the “new world order.” Like disaggregated sovereignty’s foremost proponents, it takes on the example of the EU. Like them, it focuses on one area of involving changes across borders – in my case border control.

    In 2005, the EU established its border control agency called Frontex, which provides me with the test-case. In analyzing the relationship between law and violence envisioned in this agency, I look at three aspects: its legal framework, its enforcement practices, and the forms of knowledge that generate its activity. This leads me to formulating three observations: (1) while violence and protection were traditionally bound together, here the two are severed from each other, and can therefore be tactically and selectively reassembled; (2) the “chain of command” which allocates responsibility in armed forces since Nuremberg, is eliminated and replaced by “transactional enforcement,” i.e. relationships in which different actors within enforcement authorities are buying and selling pieces of sovereignty; (3) decision-making is replaced by expert opinion, which is positioned higher than politics (through the concept of “risk”).

    Taken together, these three features of the relationship between law and violence in the migration context are generalizable, and provide a blueprint for this relationship in a wide variety of contexts where inter-state violence is wielded. The three at the same time conceal that violence, controverting any allocation of responsibility. Thus, they signify the advent of a veiled form of sovereignty, which denies its own monopoly on violence. As disaggregated sovereignty is not a vision but simply a fact of social life, the appropriate task is a critique of violence, meaning a search for vocabularies in which this violence can be identified (and resisted). 

  37. Diego Gil McCawley, The Challenges of Community Building: Land Use Regulation and Residential Segregation in Santiago, Chile (Stanford Law School)
  38. Despite decades of economic development and the general improvement in the quality of life of its people, Santiago, the capital of Chile, presents high levels of residential segregation along socioeconomic lines. A debate about legal reforms to address this phenomenon is currently occurring. 

    Existing Chilean research suggests that the current pattern of urban segregation has been caused by social housing policies based on the provision of subsidies to homeless people implemented in the last decades. However, foreign literature, especially in the United States, indicates that residential segregation is also influenced by land use legal structure and practices. This latter factor has been overlooked in Chilean scholarship, and the purpose of this paper is to include this additional dimension in the current debate.

    Drawing substantially from a series of semi-structured interviews with key players involved in the regulation of urban space and in the implementation of social housing policies in Santiago’s metropolitan area, this paper asks whether Santiago’s land use legal dynamics affect the achievement of social integration. In overview, the paper finds that Santiago presents a complex regulatory scenario in the realm of land use, mainly involving the Ministry of Housing and Urban Planning (MHUP), and its 52 municipalities. The research also finds that through the exercise of multiple administrative and regulatory mechanisms, municipalities are increasingly using their power to guide the urban development in their corresponding territories. However, this is largely contingent on the bureaucratic and financial situation of each local government, the social needs they have to cover, and the political pressure they face. Some municipalities are subject to intense lobbying from real estate developers, landowners, and residents’ organizations. Therefore, the regulatory possibilities among Santiago’s local governments vary dramatically.

    This fragmented scenario impacts the way public officials perceive the relationship between the legal structure and segregation. Some observe that the law establishes strong obstacles to residential integration. Others emphasize the lack of incentives to produce inclusionary housing projects. Finally, a third group considers that segregation is beyond the scope of their concern. This is especially observed in high-income districts.

    The findings of this paper support the idea that social housing policies based on subsidies cannot be the only remedy for socioeconomic residential segregation. Without addressing the institutional choices and incentives created by Chilean land use legal framework, and how this institutional structure operates in practice, social integration within Santiago’s metropolitan area will remain an unattainable ideal.

  39. Maja Munivrana, Questioning the Law of Genocide: Ethnic Cleansing as Genocide? Croatian and International Perspective (University of Zagreb)
  40. On July 2, 1999 Croatia submitted an Application instituting proceedings against the Government of the Federal Republic of Yugoslavia (Serbia) for violations of the Convention on the Prevention and Punishment of the Crime of Genocide. In the preliminary statement Croatia claimed that Serbia “is liable for the ‘ethnic cleansing’ of Croatian citizens from these areas [Knin region, eastern and western Slavonia, and Dalmatia] – a form of genocide which resulted in large number of Croatian citizens being displaced, killed, tortured, or illegally detained, as well as extensive property destruction…” On January 4, 2010, Serbia filed a counter-claim alleging that Croatia itself has violated the Genocide Convention during and after the Operation Storm in August 1995, against Serb national and ethnical group living in the Krajina region. Serbia claimed it would show “that the ‘ethnic cleansing’ of Serbs was carried out with the intent to destroy that population and that, in fact, a part of Serbian population in Croatia was destroyed as a result of the actions of the Applicant.”

    This paper will seek to inquire whether nowadays ethnic cleansing can be considered a form of genocide, notwithstanding its exclusion from the Genocide Convention. Along the same lines, it will analyze under which conditions acts of forced removal of population may fall within the meaning of genocide. In this context, the paper will attempt to answer the question if there is a need to reconceptualize the existing definition of genocide or prevailing interpretation of its elements. While some argue that reasons of continuity and stability speak against any potential amendments, pointing out that genocide should remain strictly construed in order to preserve its unique stigma of ‘crime of all crimes’, others are in favor of adjusting the norm or at least interpreting it progressively, thus making the prohibition of genocide more applicable to modern challenges instead of serving merely a symbolic function as a reminder of Holocaust.

    Perhaps following the same line of reasoning, some national legislators have broadened the scope of the offence in comparison to international law, especially with regard to the range of protected groups and incrimination of ethnic cleansing as genocide. Exactly the latter is the case in Croatia, as article 157 of the Croatian Criminal Code incriminates forceful transfer of population as an additional form of actus reus of genocide. In line with such legislation, Croatian courts have repeatedly relied on the practice of ethnic cleansing to find defendants guilty of genocide. This paper will question the justifiability of Croatian approach and inquire into some of the challenges posed by existence of different notions of genocide at the international and national level. Namely, after a brief (critical) overview of Croatian case law, it will tackle the viability of Croatian and Serbian genocide allegations, i.e. whether Croatian application and Serbian counter-claim, respectively, have any potential for success.

  41. Fernando Muñoz León, ‘Unchangeable by Ordinary Means’: The Chilean Educational System through Constitutional Conflict, Codification and Entrenchment (Yale Law School)
  42. Entrenchment is essential to constitutionalism. Wherever we find a trace of constitutionalism, we find a trace of entrenchment: of structures, procedures, and entitlements that are protected against normal change. Separate branches of government, protected clauses, supermajoritarian rules of change, and even individual rights that governments cannot encroach, are at the heart of constitutionalism. Isn’t that precisely what having “a superior, paramount law, unchangeable by ordinary means” means? To be sure, there are many different ways of performing that entrenchment and various degrees to which it can be realized, allowing us to speak of elastic (flexible) constitutions and unyielding (rigid) constitutions, with several shades in between. The conceptual core of the phenomenon, nonetheless, remains the same to the extent that we focus on some fundamental questions. Why would anyone try to entrench something? What contexts make entrenchment more viable and intense? And who pays the costs of over-entrenchment?

    My purpose in this paper is to understand entrenchment contextually and dynamically in one case: the constitutional cycle of conflict, codification and entrenchment surrounding the Chilean educational system. The crux of this process was the enactment in 1980, by the Military Junta governing the country, of a new Constitution that meant the ‘annihilation’ of the preexisting constitutional order and the agonistic democracy that it enshrined, and that resulted in the creation of a protected democracy whose shortcomings have become more evident than ever under the heat of the 2011 student protests.

  43. Nam Seunghyun, Accountability of Non-State Actors for International Crimes under the New Global Governance Regime (University of Pennsylvania)
  44. Since human rights violations traditionally occurred within a state or agents by the state against individuals, international human rights law developed in a way in which it placed the responsibility on states for protecting human rights of all individual beings. Therefore, the current international human rights regime relies on domestic legal systems for enforcement, providing sovereign states a significant degree of autonomy in determining their own policies on human rights. States fulfill their international obligations as states parties to human rights instruments by enacting their own necessary legislation that ‘respects,’ ‘ensures’, and ‘secures’ human rights.

    However, the paradigm of the global society is changing as there is greater social and economic interdependence between states through the process of globalization, and it is rather questionable whether states today have the exclusive capacity to manage the international order in protecting the human rights of individuals. The authority of the state is eroding in favor of private individuals, including business corporations, criminal organizations, rebel groups and terrorists. These new global actors now not only have the force to directly impact the enjoyment of individuals of their rights and freedoms, but their roles have expanded largely to engage in laws relating to organized crime, the conduct of warfare, maintenance of international peace and security, trade and environmental protection.

    Furthermore, human rights violations no longer occur within a state, but it is perpetrated across borders as globalization facilitates cross-border activities of various private actors. Human trafficking is a clear example of a transnational crime that manifests globalization, expanding rapidly with increase in human mobility and greater economic and demographic disparities between the developing and developed world. Such transnational crimes cannot be addressed individually on a state level, but require close cooperation and collective action between not only states but also nonstate actors since private actors are often directly involved in such abuses and states will often deny legal responsibility for acts of private individuals. Therefore, I would like to argue that a new institutional framework needs to be developed in which it recognizes the role and responsibilities of non-state actors on an international level for combating new transnational crimes such as human trafficking.

  45. Adedokun Ogunfolu, Can Socio-Economic Rights Make the Nigerian State More Accountable? (Obafemi Awolowo University)
  46. The Nigerian economy earned over $300 billion from oil revenues between 1982 and 2007, but paradoxically, poverty is still the lot of most Nigerians. From 1991 to 2001 70% of Nigerians lived on less than a dollar a day. The position today remains the same if not worse. Nigeria ranked 142 in the 2010 Human Development Report with life expectancy at 48.4 and gross national income (GNI) per capita of $2156(PPP2008$).  Maternal mortality still ranks amongst the worst in the world with 1,100 women losing their lives per 100, 000 live births. In spite of these grim figures the Nigerian Constitution classifies socio-economic rights as being non-justiciable, while civil and political rights are the only guaranteed and justiciable rights. The paper will attempt to answer the following question: Can justiciable socioeconomic rights make the Nigerian state more accountable and channel its resources to the efficient provision of socioeconomic rights to jumpstart Nigeria’s economic development?

  47. Athanasios Psygkas, “Constructing and Transforming Administrative Democracy in Europe: The Influence of EU Law” (Yale Law School)
  48. Kenneth Wheare noted as early as 1968 that “[i]f a general survey is made of the position and working of legislatures in the present century, it is apparent that, with a few important and striking exceptions, legislatures have declined in certain important respects and particularly in powers in relation to the executive government” (Wheare, 1968). The “decline of legislatures” was accompanied by another fundamental development of the 20th century, the rise of the administrative state: rules produced at the administrative level are increasingly important, both in terms of their volume and their scope.
               
    The traditional model of administrative law, premised upon an idealized perception of representative democracy, would conceive of the administrative agency as a mere “transmission belt” for implementing specific legislative directions in particular cases.  However, the “transmission belt” theory fails both empirically and normatively. A similar criticism would apply to a closely related construction which seems to be still influential in European parliamentary systems, that is, the “chain of legitimacy” idea. According to this view, administrative action is legitimate not only when (or because) it enacts specific legislative mandates, but because administrative institutions themselves draw their legitimacy from the public via their elected representatives that control the bureaucracy.

    What is therefore required is an institutional design that “accepts the need for supplementary bureaucratic lawmaking in the ongoing regulatory enterprise but that self-consciously confronts the serious legitimation problems involved” (Ackerman, 2000) and tries to bring citizens back into the policymaking process. My paper will argue that the decentralized EU regulatory system seeks to confront these legitimation problems by building or transforming mechanisms of administrative democracy at the member state level. More specifically, EU law mandates create or formalize entry points for stakeholder participation in regulatory agency operations at the member state level. This, in turn, might have longer-term implications on the nature of governance in the member states since these practices may be generalized across the wider spectrum of administration within the national systems.

    The extent to which these observations will materialize hinges on the individual member states, their administrative culture and system before the advent of EU law; this invites a cross-country analysis. In the paper I examine one of my country cases, France, and assess the transforming effects of EU law mandates on administrative democracy in that example.

  49. Qian Jing, Corporatist Representation via People’s Congress: An Aspect of the State-Society Relationship in Contemporary China (University of Victoria)
  50. With the research question asks how the current Chinese regime deals with conflicts between a still authoritarian state and a diversifying society, this paper answers by exploring the role of People’s Congress (PC), a representative and legislative mechanism in China, as an intermediary realm between the Party-state and social segments, in interest representation/articulation/intermediation in a more and more pluralistic and complex context.

    With a tailored theoretical framework of corporatism and corporatist legislature, verified by empirical studies from Zhejiang province, this paper analyzes the role of Local People’s Congresses (LPC) in the corporatistly arranged interest representation formula in China: Party—PC—Society. By depicting LPC's different corporatist strategies towards various societal segments, it also shows the state’s preferences of inclusion among different sectors of social interests in the fragmented society.

    It is an interdisciplinary study involving law, political science and sociology, within the framework of contemporary Chinese studies and, more specifically, studies on Chinese socio-political transition, under the context of the fundamentally altered and still rapidly changing relations between the state and society in post-1978 China. The state-society relationship is considered as being configured into political institutions, such as the research objective here, the legislature. Therefore, this paper also belongs to the family of comparative legislative studies, especially the study of Chinese legislatures, which aims to extend the scope of research on the legislative institution in China to the field of state-society relations and contributes to comparative legislative studies in the perspective of corporatism.

  51. Natasha Salinas, Procedure versus Substance in Statutory Policy-making in Brazil: Why the Former Always Wins and What Implications Arise From It (University of Sao Paolo)
  52. Significant changes have taken place in Brazilian administrative law since the late 1980s. As a result of this transformation, new administrative agencies with reinvigorated rule-making power were created in the 1990s in order to “reinvent” government.

    Under the new institutional scheme to which scholars have turned their attention, a portion of the Brazilian Administrative State has been granted resources and conditions to develop administrative capacity and has obtained more autonomy in return of more accountability controls and public participation in the policy-making process. This scenario has thus led to an increasing interest in the study of public law applied to newly created agencies in charge of regulating a wide range of activities. This new interest in public law, however, has deviated scholarly attention from the study of longstanding agencies which remain hierarchically subordinated to the president and that exercise a wide range of key regulatory activities in Brazil. 

    This work thus go in an opposite direction from a current scholarly trend of ignoring the role of non-insulated government agencies in the administrative state, as well as of undermining the importance of legislative strategies in shaping bureaucratic behavior and constraining administrative discretion. Despite the fact that potential benefits may arise of new institutional arrangements, this work will rely on the assumption that traditional methods for shaping bureaucratic behavior, such as legislating fundamental issues of a policy, are part of an unfinished project that needs to be completed if alternative methods of policy making are to be taken seriously in Brazil. 

    In order to carry out this research problem, my paper will be divided in two major parts. I will first provide an analytical framework which explains why statutory policies in Brazil are not substantive-oriented and what are the problems that may arise from that. Finally, I will develop a case study to assess the impact of this regulatory strategy on environmental policy. The argument is that proceedings involved in the issuance of environmental licenses in Brazil, which are deliberately unaccompanied by substantive standards, undermine environmental protection in remarkable ways. The transformations through which Brazilian public law has gone do not seem to address this problem and therefore have limitations to ameliorate policy in Brazil.

  53. Guy Fiti Sinclair, ‘Constitutional’ Transformation in an International Organization: The Emergence of United Nations Peacekeeping  (NYU Law School)
  54. This paper presents a condensed account of the emergence of United Nations (UN) peacekeeping in the 1950s and early 1960s, as an example and illustration of a more general feature of contemporary global governance: the expansion of powers exercised by international organizations through informal processes of reform, (re)interpretation and practice. The paper shows how this phenomenon is produced by a confluence of multiple, diverse, and frequently contending projects of reform, drawing upon and weaving together the diverse moral, expert, and legal modes of discourse and practice that together constitute and legitimize international authority. To the extent that these diverse projects of reform and the discourses they deploy are aligned and overlap, international organizations become at once the subjects and the objects, the vehicles and the targets, of reform. In the present case, projects of reform aimed at redressing the perceived problem of ‘great power’ domination in the UN and global order more generally – exemplified by frequent exercise of the permanent member veto power on the Security Council, as well as the continuation of colonialism in its various forms – helped to legitimate the establishment of the first armed peacekeeping operation, the UN Emergency Force, in 1956. Four years later, the Congo operation (19601964) marked a shift in focus from questions of sovereignty and territorial integrity to a concern with the welfare and good government of the decolonized states, articulated in the emergent technical discourses and practices of modernization and human rights. Finally, as that operation progressed, a more personal and intimate project of moral reform became apparent, focusing on the character of leadership in both states and international organizations, and ultimately legitimating an expanded range of interventions by the UN in the Congo.

  55. Richard Stacey, “Legislating Change: Coming to Terms with the Tension Between the Rule of Law and Commitments to Social Justice” (NYU Law School)
  56. The Rule of Law and social justice are ideals to which political communities around the world are committed. Respect for the Rule of Law, on the one hand, demands government in accordance with the principles and rules of a legal system. At the same time, aspirations to social justice involve projects of social transformation intended, say, to reduce disparities in standards of living and increase access to socio-economic resources.

    The claim is made, however, that the pursuit of social justice requires a government empowered to transform society in significant ways, and that this expanse of public power undermines the limits to power that the Rule of Law treasures. This paper rejects this claim. First, it argues that in order for a legal system to do any work in controlling power, it must enshrine some conception of justice. For law to both authorise and constrain acts of public power, it must offer some view of the common good against which the exercise of power can be justified. A commitment to the Rule of Law, then, implies a commitment to a conception of justice – although not to a particular conception of justice.

    Second, where a conception of justice flows throughout the entire legal system, and infuses the legislative and regulatory mechanisms by which both society is ordered and limits to government power established, efforts to order society in a particular way will not necessarily offend the Rule of Law. Tension arises between the Rule of Law and social justice objectives, I argue, where a ‘normative harmony’ between a conception of justice and the means of limiting power is absent. This paper suggests that where a legal system achieves this normative harmony, the Rule of Law is not only compatible with social justice, but indeed a viable framework for the pursuit of social justice.

    Legislation can drive the advancement of social policy objectives at the same time that it can set limits to government power. Careful legislative drafting can thus allow for the control of government power by law, and according to a conception of justice that envisions social transformation. Legislation offers a promising site for the resolution of the tension between the Rule of Law and social justice.

  57. Sarah Swan, Triangulating Rape: Tort, Commodification and Civil Recourse Theory (Columbia Law School)
  58. Rape has a history of triangulation.  In its older forms, it was understood as a wrong between men: one man’s rape of another man’s wife, daughter, or servant would be legally interpreted as a wrong done to him.  When framed as an injury to a man, the law had little difficulty commodifying the sexual injury, and easily converted sexual injuries to women into economic remedies for men.  Punitive damages were frequently awarded in order to remedy the affront to masculine honor that the injury represented. 

    Rape is no longer viewed in this way, yet triangulation continues to be an important part of its legal narratives.  Rape is currently being re-triangulated in at least two complex ways.  First, many civil suits alleging rape now involve three parties: a female plaintiff, a male defendant, and a corporate or institutional defendant who failed to prevent the rape.  These suits raise questions about responsibility for rape and rape prevention, and societal complicity in these events.   Second, many legal, cultural, and social factors pressure women to not file rape civil suits at all, and to rely solely on the criminal system instead.  The criminal adjudication of rape mimics its historically triangular structure and configures the dispute as an offence between man and state, over the body of a woman.  In my working paper, I explore the complicated connections of these triangulations of rape.  I interrogate how stories of commodification have impacted these triangulations, and consider the gendered assumptions regarding economic compensation and revenge that they reveal.   Further, I examine these triangulations in the light of civil recourse theory.  Analyzing the triangulation of this area of tort law, and the underlying tensions between the civil, the criminal, the commodifiable, and the complicit, should tell us more about the potential for civil courts to not only provide remedies for rape, but to impact the socio-political reality which allows rape to occur.

  59. Charlie Xiaochuan Weng, Chinese Shareholder Protection and the Influence from the US Law: the Idiosyncratic Economic Realities and Misplaced Agency Problem Solutions (University of Pennsylvania)
  60. With the stunning developing velocity of Chinese capital market, multitudes of legal and economic literatures criticize the inefficiency of shareholder protection laws. Admittedly, enforcement is the chronic disease puzzling authorities and legislature not only in shareholder protection but in every regulatory area for a long time. However, very few people cast doubts on the regulations per se, given most of shareholder protection laws are inspired and transplanted from the US Law, which is widely recognized as the most efficient and the strongest shareholder-protective system comparing with other jurisdictions in the world.

    The Article conducts a research on Chinese shareholder protection Laws and tries to identify the incarnations of the US Law. These laws include provisions in corporate law, securities law and takeover regulations. Then, it concludes that Chinese law almost followed all the important shareholder protection provisions in the US law. Nevertheless, law works interactively with social and economic environments. As being proved by other developed countries practices, idiosyncratic capital structures demand different regulatory approaches. Therefore, the Article then exams the economic reality in status quo Chinese capital market and found that the capital structures of the two countries are starkly different.

    The last part of the Article analyzes that how the transplanted laws function in Chinese capital market. If the market is comparable to human body and the shareholder protection laws are the spirit, the efficacy of the laws is schizophrenic. The weapons the US style shareholder protection law awarded to Chinese shareholders provide almost no protection in such a controlling-shareholder- dominating capital market. Astonishingly, controlling shareholders still refrain to infringe minority shareholders’ interests. The answer is straightforward: most of them are passive and low-efficiently-operated State-owned Entities (SOEs). With the rising of institutional investors, especially of private equities, Chinese market needs powerful regulations to rein voracious and unscrupulous private controlling shareholders and the transforming SOEs.

  61. Emily Kidd White, Change of Heart (NYU Law School)
  62. It is a common assumption that reason, whether deductive or inductive, dictates changes in the law. A critical eye quickly rearranges this assumption, introducing a normative statement: reason should dictate changes in the law. This assumption draws on modern philosophical thought, which separates reason and emotion and heralds the former as the path to truth. According to this view, the law as reason protects us from our wild nature and uncontrollable, vengeful or indulgent passions. And yet, emotions are embedded in the law in generally uncontroversial ways. For instance, the grounds of illegality are often intimately related to the imagined emotional response of the body politic. As argued by Martha C. Nussbaum, “any good account of why offences against person and property are universally subject to legal regulation is likely to invoke the reasonable fear that citizens have of these offences, the anger with which a reasonable person views them, and/or the sympathy with which they view such violations when they happen to others.” (Nussbaum) In philosophical terms, this view is articulated in John Stuart Mill’s sentiments of justice. In human rights law, this view is expressed when the court employs the “shocks the conscience of humanity” standard to determine illegality. In contrast to the above approach, Aristotle and the Hellenistic schools understood the passions to be both socially constructed and useful. This renders them suitable subjects for examination and criticism. In the Gorgias, Aristotle argues that logoi (discourse, speech acts) have the power to “stop fear and take away grief and engender joy and increase fellow feeling.” (Nussbaum) Discourse, then, can inspire emotions that lead us towards right thinking or, at times, wrong thinking. Martha Nussbaum and William Ian Miller build on this conclusion, finding that some emotions guide us well while others – like shame and disgust – guide us poorly. This paper critically engages with the assumption that reason is or should be the sole impetus for change in the law. Its specific aim is to provide a critical taxonomy of the ways in which legal theorists interested in emotion (Miller, Nussbaum, Williams) conceptualize the relationship between appeals to emotion and changes in legal decisions, creed or doctrine.