Markets and Morals: The Limits of Doux Commerce

In this Essay on Professor Oman’s beautifully written and meticulously researched book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called doux commerce thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from tradition, which suggests we should be careful attributing too much to markets’ ability to promote liberal pluralism. According to Burke, it is the Western tradition, not commerce, which creates the tolerant, pluralist marketplace of the doux commerce thesis. That Burke was correct is suggested by several historical examples and by contemporary events in the United States and across the globe. That is not to say that Oman is entirely wrong about the potential political benefits of the market, only that we should be careful not to overstate them

International Decision: United States--Continued Dumping and Subsidy Offset Act of 2000

This brief article is a report of an international decision of the World Trade Organization Appellate Body on January 16, 2003, concerning the United States’ Continued Dumping and Subsidy Offset Act of 2000 (WT/DS217 & 234/AB/R). Eleven WTO members—Australia, Brazil, Canada, Chile, the European Communities, India, Indonesia, Japan, Korea, Mexico, and Thailand—filed a challenge to the Byrd Amendment in the summer of 2001. A WTO dispute settlement panel, agreeing with the complaining parties, made two major findings. First, the panel concluded that the Byrd Amendment constitutes an impermissible specific action against dumping and subsidization under the Antidumping and SCM Agreements. 9 Second, the panel concluded that the Byrd Amendment is inconsistent with the Agreements\u27 requirement that investigations of dumping and subsidization have the support of a domestic industry. The panel reasoned that many firms might file or support applications for relief from dumping and subsidization, even if they were not really affected by import competition, simply in order to qualify for Byrd Amendment distributions. The United States might thus initiate an investigation even though actual support in domestic industry was lacking. On appeal, the Appellate Body upheld the panel\u27s holding that the Byrd Amendment constitutes an impermissible action against dumping or subsidization, but reversed the panel\u27s holding on the industry-support question. With respect to the first issue, the Appellate Body noted that the Antidumping and SCM Agreements provide that [n]o specific action against dumping or subsidization may be taken by a member except as authorized by WTO rules. The Appellate Body easily concluded that the Byrd Amendment constitutes a specific action for these purposes. Payments under the Byrd Amendment, it explained, are inextricably linked to, and strongly correlated with, a determination of dumping or subsidization. Without a determination of dumping or subsidization, there would be no antidumping or countervailing duties to distribute

Of Human Dignities

This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church, the Russian Orthodox Church, and the Organization of Islamic Cooperation favor objective understandings which, although they differ among themselves, all tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it

Rediscovering Williston

This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston\u27s jurisprudence presents an incomplete and distorted picture. While much of Williston\u27s work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today\u27s new formalism than commonly supposed. Even the under-theorized quality of Williston\u27s scholarship—to contemporary readers, the least appealing aspect of his work—makes certain amount of sense, given his goals and intended audience

Of Human Dignities

This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church, the Russian Orthodox Church, and the Organization of Islamic Cooperation favor objective understandings which, although they differ among themselves, all tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it

Judging International Judgments

What effect should rulings of international courts have in domestic courts? In the U.S., debate has centered on a series of rulings by the International Court of Justice (ICJ) on the application of the Vienna Convention on Consular Relations (VCCR). The VCCR, a multilateral treaty that the United States ratified in 1969, grants foreign nationals the right to seek the assistance of their consulates in the event that local authorities arrest them. An Optional Protocol to the VCCR gives the ICJ jurisdiction over disputes relating to the interpretation and application of the treaty. Since the late 1990s, the ICJ repeatedly has ruled that the United States has violated the VCCR. In its 2004 Avena judgment, the ICJ ruled that, where American courts had convicted foreign nationals and sentenced them to severe penalties, the United States must remedy its violations by providing judicial review and reconsideration of the convictions, notwithstanding procedural bars under local law. The United States withdrew from the Optional Protocol after Avena, thereby eliminating the possibility of future adverse judgments in VCCR cases. It remains party to scores of other agreements granting the ICJ jurisdiction to resolve disputes, however, and the domestic force of ICJ rulings, and international judgments generally, remains a vital question. In the much anticipated Sanchez-Llamas v. Oregon, a divided Court issued its most definitive ruling yet on subject. Sanchez-Llamas concerned the weight that domestic judges should give to Avena and other judgments that the ICJ had issued before the United States\u27 withdrawal from the Optional Protocol. More specifically, the case concerned the effect that the ICJ\u27s interpretations of the VCCR should have in American courts. Both Chief Justice Roberts and Justice Breyer agreed that the ICJ\u27s judgments merited \u27respectful consideration. They disagreed, though, on what respectful consideration required. The Court\u27s opinion reflects what might be called a dualist approach: in the absence of a domestic act of incorporation, international judgments have only information, not disposition, value for domestic courts. International judgments can supply good arguments and helpful analysis for domestic courts to use in their own treatment of legal problems, but they cannot influence a case by virtue of their status as judicial pronouncements. By contrast, the dissent adopts the comity model. That model calls for an informal, cooperative relationship between international and national judiciaries. On this view, international judgments lack binding authority, but domestic courts should defer to them, where possible, in the interests of justice and global uniformity. This Article will show why the dualist approach affords the superior means of accommodating the sort of international judgment at issue in Sanchez-Llamas. Part I describes Sanchez-Llamas, situating the case in the context of the wider VCCR controversy of which it is a part. Part II explores the deeper arguments that lie below the surface in the case. Part II(A) shows how the Court\u27s opinion reflects a dualist approach and discusses the legitimacy arguments that support that approach. It shows how dualism allows domestic judges to balance the competing demands of international order and domestic authority. Part II(B) explores the comity model that the dissent endorses and explains why the Court was right to reject it. Part III concludes

Formalism in American Contract Law: Classical and Contemporary

It is a universally acknowledged truth that we live in a formalist era—at least when it comes to American contract law. Much more than the jurisprudence of a generation ago, today\u27s cutting-edge work in American contract scholarship values the formalist virtues of bright-line rules, objective interpretation, and party autonomy. Policing bargains for substantive fairness seems more and more an outdated notion. Courts, it is thought, should refrain from interfering with market exchanges. Private arbitration has displaced courts in the context of many traditional contract disputes. Even adhesion contracts find their defenders, much to the chagrin of communitarian scholars. This is not the first formalist era in American contract law. For about 60 years after 1870, the American academy was dominated by what has come to be known as classical jurisprudence. The classicists were formalists, too. They argued in favor of objectivity and predictability and relatively free markets. Indeed, the story of their overthrow by the Progressives and Realists in the middle part of the twentieth century, a story told memorably by Grant Gilmore in The Death of Contract and The Ages of American Law, is in many ways the grand narrative of American contract jurisprudence. It would be entirely understandable for contemporary formalists to view themselves as a kind of Restoration. Yet New Formalists—the designation became popular in the 1990s—don’t really see things that way. New Formalists reject classical contract jurisprudence as outmoded. They dismiss the essentialism of the classicists, preferring arguments about efficiency and pragmatism to conceptual analysis. They reject the classical belief in the ineluctability of legal rules; for New Formalists, legal rules have only presumptive force. Their commitment to the free market is less conceptual. Finally, New Formalists denigrate the under-theorized nature of classical jurisprudence. New Formalist scholarship does not focus on doctrine and does not rely on the intuitive justifications of lawyers and judges. Rather, it seeks to explain contract law with the tools of social science: economics and statistics. In reality, the differences between classical and contemporary formalism are less pronounced than New Formalists believe. Some versions of classical jurisprudence might fit the image New Formalists have of it; the work of Langdell, perhaps, comes close to the caricature. But some classical jurisprudence does not. Using the work of an important classical contract scholar, Samuel Williston, I will show that at least one influential version of classical formalism also valued pragmatism. Williston was not an essentialist. He held that legal rules were presumptive, to be disregarded where important real-world values counseled a different result. Moreover, Williston did not support freedom of contract with the ideological fervor we sometimes attribute to him

Enforcement of WTO Rulings: An Interest Group Analysis

The WTO\u27s Dispute Settlement Understanding ( DSU ) provides that disputes are to be resolved in adversarial proceedings before impartial panels of experts. These panels have authority to decide whether members\u27 laws conform to WTO requirements; members may appeal rulings to a permanent Appellate Body within the organization, which has the final say on questions of law and legal interpretation. Under the DSU, if a member fails to comply with a final ruling in a dispute, the prevailing party may retaliate by suspending trade concessions that it owes the offending member. This retaliation can continue until the offending member implements the WTO\u27s decision. Judging by the frequency with which members resort to it, the new mechanism is a stunning success. Still, WTO dispute settlement has drawn great criticism, much of it focusing on the new enforcement mechanism. Several commentators argue that the retaliation remedy is too weak and unpredictable to be of any real use. By contrast, other critics contend that the present enforcement regime is too coercive and inflexible. To them, retaliation seems high handed, an attempt to force sovereign states to repeal laws that were enacted by democratically elected governments. Suspending trade concessions, they point out, hurts innocent firms that find their products subject to higher tariffs. Moreover, the retaliation remedy undercuts the WTO\u27s own first principles by creating a situation where two countries—the offending member that has enacted the protectionist measure and the injured member that has responded with trade sanctions—have departed from free trade commitments. These critics argue that the WTO should consider softer enforcement mechanisms with fewer teeth.” In this essay, I defend the existing enforcement mechanism. I do so by explaining the mechanism in terms of interest group theory. Even though protectionist measures injure consumers as a whole, countries often adopt such measures to satisfy the demands of domestic interest groups that suffer because of free trade. By imposing burdens on the products of countries that adopt such measures, the retaliation remedy creates incentives for another set of domestic interest groups—exporters—to lobby against them. Over time, if retaliation is correctly calibrated, the domestic groups that favor free trade can neutralize the effect of the domestic groups that oppose it. The retaliation remedy thus promotes compliance with WTO rulings without intruding directly on domestic institutions. In this way, the mechanism is superior to suggested reforms, like direct effect, that would commandeer courts or other national governmental bodies. Indeed, the genius of the retaliation remedy lies in its ability to use the domestic political process to achieve the public interest. By setting one collection of interest groups against another, the retaliation remedy encourages the adoption of free trade policies that benefit a nation\u27s consumers as a whole. This essay proceeds as follows. First, I explain the interest group theory of trade restrictions, showing how interest groups can secure the adoption of protectionist measures that work to the detriment of consumers as a whole. I then describe the WTO\u27s enforcement mechanism and demonstrate how it can overcome the problems posed by protectionist groups and promote compliance with a nation\u27s free trade commitments. Next, I discuss the two disputes to date in which prevailing parties have resorted to the retaliation remedy, Bananas and Hormones. Finally, I show how the retaliation remedy is superior to one suggested reform that has drawn a great deal of attention, namely, giving WTO rulings direct effect in national courts