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Abstract: Uniform law making has a substantial history in the twentieth century. It seems to be continuing with some force into the twenty-first century. A significant American law and economics literature, however, questions its merit. By contrast, there have been limited rational choice oriented investigations of unification or centralization of law in Europe. Critics of the uniform law movement in the United States use methods of analysis influenced by public choice theory, political economics and positive political theory. The paper does not call into question the methods and assumptions of these approaches. The paper claims that economic analysis supports public policy in favor of unification of law, if certain conditions are met. Research to date on the question does not lead to the conclusion that governments should avoid unification as a general principle. A central pillar of these claims is that unification can lead to efficiency improvements in the law. Two questions must be explored to understand the effects of any law, one normative and the other positive. The normative question is whether unified rules are more efficient than diverse rules. The answer to this question is "they can be." The positive question is whether or not the rule making process leads to the production of efficient rules. The answer to this second question is "it depends." The paper explains how political economics and public choice theory support arguments for the proper design of institutions to facilitate efficient unification. It is beyond challenge that the characteristics of the lawmaking process - institutions - affect the content of the substantive rules that are produced in any such process. The paper throws into question the way questions are posed in the scholarly debate about unified versus diverse law. To make the analysis sufficiently general, we have to flip the question and ask about the effects of the process of making diverse or decentralized law on the content of the law. Decentralized institutions do not necessarily produce apolitical law because they can suffer from public choice problems too. The question is not whether the institutions of unification are or are not subject to interest group capture, rent seeking or any of the other properties of a law making process that public choice theory predicts, but whether the workings of those institutions results in efficiency improvements over what actually exists in law making settings that do not involve unification, such as those which occur in domestic legislatures or domestic courts. The paper urges a focus on design of institutions to minimize the production of inefficient law. What is required is a close institutional analysis of each institutional process to determine what sorts of rules are produced. From these sorts of close analyses, no general conclusion, such as unification is "good" or "bad" can follow. The paper examines these questions from American and European contexts.
legal unification, comparative law, commercial law
Abstract: Nietzsche had very little to say about law and what he did say is fragmentary and sporadic. Nietzsche's philosophy, however, offers a basis for theorizing about law. I use Nietzsche's important works to interpret two major movements in legal thought. The first part of the paper examines how Nietzsche's philosophy augments our understanding of deontological theories about the law. Nietzsche produced a substantial ethical theory. The second part of the paper examines how Nietzsche's philosophy helps us to understand law and economics. Nietzsche had a great deal to say about the intellectual predecessor to law and economics, utilitarianism, and his critique of utilitarianism offers insights into law and economics and its intellectual history. Further, Nietzsche elaborated a philosophy of science that extends to and offers insights about "analytical" social sciences such as economics.
legal theory, Nietzsche
Abstract: When resources become valuable, various social and institutional pressures come to bear to enclose them in a property rights regime. Given the substantial progress of biotechnology and the life sciences, genetic resources found in biological diversity are experiencing such pressures. The question of how much commodification or commercialization of genetic resources is appropriate is of global concern; it affects the distribution of wealth in and among societies and countries. This article explores the emerging treaty law on intellectual property and biodiversity. It inquires What is biodiversity? and Why is biodiversity preservation important? It then focuses on the United Nations Framework Convention on Biological Diversity (CBD), concluded on 5 June 1992 at the Rio de Janeiro Earth Summit. Finally, it compares the CBD to other treaties relevant to intellectual property and biodiversity, using a two-part framework: the treaties are either property-oriented, such as the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), or commons-oriented, such as the CBD and the International Treaty on Plant Genetic Resources for Food and Agriculture. The International Treaty on Plant Genetic Resources, negotiated under the auspices of the Food and Agriculture Organization, has the potential to become the most important in the field.
treaties, intellectual property, biotechnology
Abstract: Two of the most significant efforts to bring municipal procurement institutions up to international standards are the WTO Agreement on Government Procurement (GPA) and the UNCITRAL Model Law on Procurement of Goods, Construction and Services. Though the Model Law has had limited adoptions, it enjoys global influence as a source of norms and practices for good public procurement. The GPA, also reflective of international standards, seems to be on the rise, as more WTO members elect to become GPA contracting parties. This article explores two aspects of these instruments. First, the article explores how the Model Law promotes efficient public procurement. It explains how the ongoing revisions of the Model Law, in particular in the area of electronic reverse auctions, continues to promote efficiency in procurement systems. Second, the article explores how the GPA promotes efficiency in its non-market access provisions, but that its market access provisions permit governments to take the fairness of procurement policies into account, through socio-economic programs. Only efficiency is a value at the transnational level, and fairness is a concern only of municipal governments at this time. The GPA thus imperfectly facilitates a mix of efficiency and fairness policies in the procurement systems of the GPA contracting parties. Only GPA contracting parties with significant market leverage, who can open up substantial procurement markets while still maintaining protected socio-economic procurements, can effectively promote both fairness and efficiency in their procurement systems. Of course, what one country might characterize as fairness, another might characterize as rent-seeking protection, and it is well accepted that while trade restrictive policies often seem laudable in theory, they can be difficult to implement and harmful in practice.
public procurement, world trade, law and development, relation of economics to social values, new institutional economics, distributive justice
Abstract: No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating the basics of the Rawlsian and Scanlonian accounts, the paper sketches how those accounts might be used to further our understanding of the fairness of World Trade Organization policies and institutions. In particular, it uses Rawlsian and Scanlonian accounts to assess whether the TRIPS Agreement is fair in how it deals with access to affordable medicines by persons in low-income countries.
Abstract: Should states use force to bring about regime change? International law recognizes no such grounds. This paper seeks to provide guidance from moral theory. The aim of this paper is to identify the moral grounds for the use of armed force by one state or a group of states, against another state, when the intention of the intervening states is to achieve a fundamental change in the character of the political and legal institutions of the other state. Lawyers tend to place the argument for regime change intervention within putative humanitarian intervention doctrines. The moral justification for humanitarian intervention is in a moral principle I call the Human Rights Principle, which provides that states may intervene militarily to stop egregious violations of basic human rights or prevent such violations when they are imminent. The Human Rights Principle does not support regime change intervention. I argue that an alternative moral principle, the Self Governance Principle, provides the moral justification for regime change intervention. Under the Self Governance Principle, legitimate states (and legitimate states only) have a collective obligation to intervene to assist citizens in an illegitimate state to bring about regime change only if a substantial likelihood exists that the citizens of the illegitimate state will form a new government in a manner meeting the conditions for national self determination, which includes the conversion of the state into a legitimate state, and post-conflict reform will a bring about a legal system meeting the conditions for the law to have practical authority to the state's population. States may comply with their collective obligation by providing just and efficacious institutions to support regime change. If the conditions in the Self Governance Principle are not met, then states must refrain from using force for regime change purposes. The conditions in the Self Governance Principle are strict and rarely met. The Iraq invasion, for example, does not meet them. Though this paper is not directly about international law, it elucidates moral principles that can inform international law. More broadly, the paper is in the tradition of conceptualizing legal and moral principles around normative reasoning and the claims to obedience these principles make on states and persons. It does not deal with causal questions whether states actually obey these principles, which, at least in the way I do philosophy here, are questions for the social sciences. This is a first draft of the paper and comments are welcome.
international economic law, world trade law, WTO, distributive justice, trade related aspects of intellectual property
Abstract: Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain.
Abstract: Judge Posner (2010) offers a substantial agenda for organization economics. He advises us on how organization economics can shed substantial light on some of the most pressing social problems of the day. I comment on two of the areas he selects for discussion and offer some comments on the relationship of organization economics to new institutional economics. Judge Posner surely is right to argue that organization economics can help us understand the failures of corporate governance in regulating executive pay. Moreover, with additional and more institutionally nuanced theorizing, organizational economics should further our understanding of the work of judiciaries in the civilian and common law traditions. Judge Posner tells us that organization economics and new institutional economics are related fields. I make a plea for economic holism. Organizations are institutions. While getting clear on disciplinary boundaries and the differing kinds and concepts of institutions is important, logical differences in concepts like "organization" and "institution" may be less important than what to emphasize in theory construction and what to test for with those theories. The success of organization economics will be in whether the different emphases produce new insights. Judge Posner is right to tell us that new insights are coming and will continue to come from organization economics. This is true however we conceptualize the field as a school of thought.
Abstract: Contractualism as T. M. Scanlon has conceptualized it has become one of the more influential moral theories of the past decade. Though contractualism connects to the social contract tradition, it has not yet been developed into a full-fledged political philosophy. At least since Rawls, the idea of a clear distinction between the private and the public has entrenched itself in moral, legal and political philosophy. Philosophical justification is in order when we take moral principles, intended to advise persons on their obligations to others, and extend them into the political realm, where their application is backed by state authority. This paper is an attempt to bridge the divide, to make Scanlonian contractualism an account to evaluate legal and political institutions. In addition to providing the philosophical justification for the move, I offer an illustration of how contractualism can be used to evaluate legal rules and policies. I illustrate how contractualism can be used to understand the emerging odious debt doctrine in international law. This is an early draft of a paper to be presented at the conference, "The Social Contract in the Modern Welfare State: Historical and Theoretical Perspectives," to be held April 18-20, 2007 at the University of Oxford Centre for Social-Legal Studies and funded by the Foundation for Law, Justice and Society.
Abstract: TRIPS Article 27.3(b) contains a proprietary model for protecting innovation in biotechnology. This chapter explains the provision and sets forth the contentious WTO history of the provision. Developing countries that are relatively rich in biodiversity and traditional knowledge but poor in capital and scientific expertise favor a commons approach to agricultural innovation, an approach that is not reflected in TRIPS. Some developed countries are headquarters to firms developing this biodiversity and traditional knowledge into commercially exploitable forms of intellectual property, and it is these countries that are interested in a strong propietary model for biotechnological innovation. This paper examines how Europe and European law enters this debate. It examines European law relating to biotechnological innovation. The European position on TRIPS coverage of biotechnological innovation does not depart significantly from the United States position or from the position of the Quad group of countries generally. European law is converging with US law on adoption of a propietary model. Given the highly contentious nature of the subject and the sometimes vociferous developing country opposition to strong intellectual property protection, TRIPS and biotechnology will remain one of the more hotly contested topics of the Doha Round.
international trade, intellectual property law, European law
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