Comparative Law
The World Bank and the Internalization of Indigenous Rights Norms
114 Yale L.J. 1791 (2005) The World Bank has emerged as an important actor in the international law community by enforcing social and environmental standards in borrower countries. One such standard is its indigenous peoples policy, which the Bank attempts to incorporate into domestic law through binding loan agreements. This Note presents a case study of a proposed Bank loan to Morocco in order to examine the difficulties of operationalizing the Bank's indigenous peoples policy. The author argues that the transnational legal process by which the Bank internalizes indigenous rights norms into domestic legal systems is influenced by external factors (domestic political and legal constraints and the level of civil society activism) and internal factors (power relations within the Bank). Understanding the dynamics of norm emergence and internalization within this process is important to understanding the role of international institutions in promoting effective norm compliance.
Who Will Find the Defendant if He Stays with His Sheep? Justice in Rural China
114 Yale L.J. 1675 (2005) In Song fa xiaxiang: Zhongguo jiceng sifazhidu yanjiu [Sending Law to the Countryside: Research on China's Basic-Level Judicial System], Dean Zhu Suli of Beijing University Law School claims that Chinese legal scholars uncritically accept foreign models and rule-of-law ideology in discussing the future of the Chinese legal system rather than examining the reality of how Chinese courts function. To correct this error, he calls on Chinese legal scholars to pay attention to ground-level courts in rural China and himself undertakes an investigation of the strategies and techniques of judges in these courts. He claims that effective rural judges are concerned almost exclusively with dispute resolution and rarely use formal law in a conventional manner or play any significant role in the diffusion of central legal norms. He also defends the practice of collective judging and the use of former military personnel as judges, both of which are frequently criticized as inconsistent with the rule of law. Zhu's data and analysis present a serious challenge to the conventional wisdom regarding the role of judges and formal adjudication in developing countries, but he lacks a sophisticated comparative perspective that could put China's experience in a more nuanced context. Most troubling, he neglects both the power of the Communist Party to use the courts to repress society and the potential role of the courts in moderating that power on behalf of the rural population.
The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s-1950s
113 Yale L.J. 1341 (2004) The struggle to define the role of the legislature in the modern administrative state has been central to constitutional politics in Western countries. That struggle was especially intense in Germany and France from the 1920s to the 1950s. Contrary to claims of certain interwar theorists, like Carl Schmitt, the apparent demise of the legislature was not the consequence of an "insurmountable" opposition between parliamentary democracy and the demands of executive power in an era of administrative governance. Rather, for both Germany and France, the constitutional flaw was traceable to a basic tenet of traditional republicanism inherited from the nineteenth century. This view held that a republican parliament, as the privileged institutional expression of national sovereignty, necessarily possessed plenary authority to allocate power among the branches as it alone deemed expedient in the circumstances. In the interwar period, the German and French parliaments repeatedly relied on this notion to cede full powers to the executive, a practice that ultimately provided the legal foundation for dictatorship. After 1945, the drafters of the West German and French postwar constitutions gleaned two lessons from the interwar experience: first, that there had to be a substantive "reserve" of governing authority that a republican parliament could not delegate; and second, that an independent body had to have power to enforce those delegation constraints against the parliament itself. Although such constraints ran contrary to older conceptions of parliamentary supremacy in a republican form of government, the drafters concluded that they were necessary to ensure the place of the parliament in a democratic system of separation of powers. The development of enforceable, yet flexible, delegation constraints in postwar West Germany and France thus marked an important constitutional innovation; it was not a doctrinal relic from the eighteenth or nineteenth centuries, as commentators often suppose when focusing solely on the American case. Moreover, such constraints suggested a key role for parliaments and courts in legitimizing executive and administrative action--a function consolidated in law, however, only after a period of significant historical struggle which paradoxically required the weakening of elected legislatures (through delegation constraints) in order to strengthen them.
The Two Western Cultures of Privacy: Dignity Versus Liberty
113 Yale L.J. 1151 (2004) Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions of everyday behavior, such as whether or not one may appear nude in public. But many involve the law. In fact, we are in the midst of major legal conflicts between the countries on either side of the Atlantic--conflicts over questions like the protection of consumer data, the use of discovery in civil procedure, the public exposure of criminal offenders, and more. Clearly the idea that there are universal human sensibilities about privacy, which ought to serve as the basis of a universal law of privacy, cannot be right. This Article explores these conflicts, trying to show that European privacy norms are founded on French and German ideas of "personal honor." Continental "privacy," like continental sexual harassment law, prison law, and many other bodies of law, aims to protect the "personal honor" of ordinary French and German folk. American law takes a very different approach, protecting primarily a liberty interest. The Article traces the roots of French and German attitudes over the last couple of centuries, highlighting the French experience of sexual license in the nineteenth century and the German experience of Nazism. The Article then discusses the current state of French and German law with regard to matters such as consumer credit reporting, public nudity, and the law of baby names. It contrasts continental approaches to what we find in American law. Throughout, the Article argues, American law shows a far greater sensitivity to intrusions on the part of the state, while continental law shows a far greater sensitivity to the protection of one's public face. These are not differences that we can understand unless we abandon the approach taken by most privacy advocates, since such differences have little to do with the supposedly universal intuitive needs of "personhood." Instead, they are differences that reflect the contrasting political and social ideals of American and continental law. Indeed, we should broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals.
The Politics of Corporate Governance Regulation
112 Yale L.J. 1829 (2003) Why do corporate governance systems differ quite substantially around the world? The American model supervises managers through a board representing a diffuse mass of external shareholders whose rights are defended by a variety of institutional rules (such as those governing insider trading, antitrust, and an open market for corporate control) and by watchdog "reputational intermediaries" (such as accountants, securities analysts, and bond-rating agencies). The claims of employers, suppliers, and buyers are subordinated to shareholder rights. The German model, in contrast, supervises managers by concentrating ownership in blockholders, permitting insider relationships, allowing substantial horizontal coordination among producers, and accepting a variety of "stakeholder" claims on the firm besides those of the shareholders. Japan, as well as Sweden, Austria, and other continental European countries, resembles the German model to varying degrees, while the United Kingdom, Canada, Australia, Ireland, and New Zealand bear closer resemblance to the American system. Just why these differences exist has been the object of vigorous debate both in the legal academy and across many other fields. Mark Roe's new book, Political Determinants of Corporate Governance, vigorously presents the "politics school," of which he is the pioneer and an important leader. Political forces, he argues, account for the difference in choice of corporate governance models among advanced industrial countries. Researchers ask: What are the "legal and institutional preconditions for strong securities markets"? Roe adds politics to the list and puts it in first place. Corporate governance arrangements inside the firm, Roe argues, interact deeply with a nation's politics. Political forces--party systems, political institutions, political orientations of governments and coalitions, ideologies, and interest groups--are the primary determinants of the degree of shareholder diffusion and the relationships among managers, owners, workers, and other stakeholders of the firm. Whatever the formal specifications of corporate law, politics shapes daily the calculations made by all players. Roe argues that where social democracy is strong, shareholder rights are weak, and shareholder diffusion is low. Social democracy gives voice to claims on the firm in addition to those of the shareholders: employee job security, income distribution, regional or national development, social welfare and social stability, and nationalism, to name a few. To counter these competing claims, blockholders resist diffusion of shares in order to maintain leverage in the boardroom, and investors shy away from a system in which they lack protection or dominance. To test this theory, Roe first correlates the degree of shareholder concentration with various indicators of social democratic power, such as partisan composition of governments, employee protection in labor law, and income equality. He finds strong evidence that weak labor correlates with strong diffusion. He then provides qualitative process-tracings (country case studies of the historical evolution of governance patterns) that show how strong labor power inhibits diffusion, and examines the impact of other economic variables--the degree of economic competition and monopoly power--on the degree of shareholder diffusion. Finally, Roe uses his political argument to confront directly a very influential alternative interpretation--the Quality of Corporate Law (QCL) argument, developed by Rafael La Porta, Florencio López-de-Silanes, Andrei Shleifer, and Robert Vishny (LLS&V). Countries with similar levels of QCL, Roe observes, differ in the degree of shareholder diffusion. Therefore, other variables must be in play. The critical one is politics. He demonstrates that for his sample of countries, the political account correlates more strongly than QCL with shareholder diffusion. Advanced industrial countries with high QCL vary considerably in the degree of shareholder diffusion; thus, something else must be at work. That something is the degree of social democratic influence. Roe tests LLS&V's impressive data collection with his own substantial data on political variables, and concludes, in my view convincingly, that politics does better than QCL. QCL can matter, Roe argues, when politics enables it to matter--that is, when property rights are assured, when enforcement and independent judges are allowed to work, and when the political balance in society gives it a place. Even then, the consequences for corporate governance of any given set of laws are driven by politics. Roe's is the only account in the law-and-economics tradition that makes politics explicitly central to an explanation of corporate governance in a comparative and international perspective. For him, political forces not only define the law--they also determine how the law actually operates. In stressing politics, Roe directly challenges other leading interpretations that stress the primacy, and autonomy, of economics, law, and private processes of reputational bonding. Roe's book provides an important opportunity to examine the status of politics in the conflicting interpretations of corporate governance. No one really doubts that politics has something to do with corporate governance, but theorists vary considerably in the status they give to politics in a causal model. Roe is unique among major authors in seeing politics as continuous, ongoing, and primary. For other theorists, politics operates in the distant past, or indirectly, or barely at all. Specifically, Roe's book allows us to examine a contest between his political theory and LLS&V's version of QCL. Although the essays contained in Political Determinants of Corporate Governance are not intended to confront QCL directly--Roe's concern with politics, dating back to the late 1980s, precedes the LLS&V publications that emerged in the late 1990s--they in fact do so. In LLS&V's argumentation, the difference between governance systems arises from the effects of common- versus civil-law legal traditions; politics exists only in the initial choice of legal system in a given jurisdiction. LLS&V then focus on the consequence of this initial act upon the development of corporate governance systems and shareholder diffusion. Yet what a country does with its legal tradition and system turns on politics: the rules that determine the extent of economic competition within and between countries; the laws and decrees that structure banking, corporate finance, and the securities industry; the rules that shape the markets for capital and labor; and the degree of state involvement in the economy. LLS&V make allusions to politics in their analyses of QCL, referring to rule of law, judicial efficiency, and corruption. But politics has no distinct causal status in their argument and, after the initial choice of systems, no longer plays a role in shaping the actual content or use of law. Roe's political theory and the QCL theory are themselves criticisms of an important literature in economics that argues that the efficacy of the market makes regulation unnecessary and renders variation among governance forms unimportant or nonexistent. Competition in product and capital markets forces firms to adopt "rules, including corporate governance mechanisms," that minimize costs in the drive to efficiency. In situations of vigorous competition, the remaining details of corporate governance are irrelevant. The logic of risk diversification will lead to shareholder diffusion. Securities regulation is unnecessary and possibly harmful. An open world economy will lead to convergence. Observed variance in systems among countries would reflect differences in economic competition, shaped by objective characteristics such as size or factor endowments. The empirical critique of this approach, made by Roe and LLS&V, notes that despite increasing international competition, the Berle-Means separation of owners from managers by no means has become universal, and thus other forces must be at work. Another interpretation of diffusion, developed by Brian Cheffins and John Coffee, argues for the private capacity of markets to develop mechanisms of reputation without state intervention, thus implicitly without politics. John Coffee groups Roe with LLS&V and Lucian Bebchuk as sharing the view that "[o]wnership and control cannot easily [be] separate[d] when managerial agency costs are high." Although they disagree "about the causes of high agency costs--i.e., weak legal standards versus political pressures that cause firms sometimes to subordinate the interests of shareholders--they implicitly concur that the emergence of deep, liquid markets requires that the agency cost problem first be adequately resolved by state action." In disagreement, Coffee quite persuasively argues that the Berle-Means model emerged from the behavior of private actors in the United States--bankers such as J.P. Morgan seeking to reassure foreign investors and the leaders of the New York Stock Exchange seeking to attract a particular kind of listing--and out of a particular situation in which state authority was absent. The legal protections came afterward, as shareholders created a constituency seeking the aid of state authority. It is not the law that causes corporate governance, but the reverse. I read Coffee as agreeing that there was a managerial agency problem--investors sought protections--but believing that state regulation was not required to solve it. Coffee rejects Roe's version of a political account, but politics does appear in his analyses in two ways. First, the shareholders lobby for regulation after diffusion has occurred, working through politics to generate QCL. Second, politics is central to Coffee's key variable--the presence or absence of state involvement in economic life--in shaping whether the private mechanisms of investor assurance develop. Arguments using norms and culture generally discount politics. Amir Licht makes an argument stressing culture, path dependence, and norms, while Coffee and Roe have both explored the role of norms in shaping behavior, holding law constant. It is not clear what these arguments make of politics: Does politics shape norms by altering the law and its enforcement in what is acceptable convention, or do norms shape politics and the law? Analyses of social movements and of corporate networks by sociologists and legal scholars explore linkages to politics and public policy. Another important body of literature on corporate governance examines competition among securities regulation and markets. The disagreement between Roberta Romano and Bebchuk on convergence for or against shareholders turns substantially on assumptions about the utility function of politicians: Do they actually seek to attract incorporation, or are they responding to other political calculi, pressures, and interests? That literature recognizes that politics matters, but does not appear to have a substantive theory of politics. The issues about the consequences of U.S. federalism reappear in analyses of the potential for "functional convergence" in international competition among securities markets. Roe's political theory of corporate governance directly confronts these alternative explanations. Whereas his first book explores the U.S. case, the new book combines, integrates, and extends into a comprehensive statement a series of articles, stretching back a decade, that sets the American experience in a comparative framework with other advanced industrial democracies. Roe's argument has become the foundation of the "political theory" of corporate law. Articles that refer to political explanations generally refer to Roe. His particular account is quite powerful, and he has advanced our understanding in developing it. The chapter on what constitutes a political interpretation, however, is by no means closed: There is not one political interpretation, but several. In this regard, Roe opens wider the door for exploration of political influences on corporate law and behavior. A careful reading of Roe's book helps us to evaluate the status of politics in interpretations of corporate governance and to examine the different meanings that can be given to political explanations. There are, thus, two steps to such a discussion. First, how does politics compare to other arguments? Second, which among several political arguments is the most convincing? Roe's admirable account is, in my view, very powerful, indeed superior, in taking the first step: Politics dominates explanations about corporate governance. In taking the second step, however, Roe's position, while still strong, is neither completely convincing nor exhaustive of the political forces at work. Roe's political account is incomplete. He does not consider two significant alternative political analyses. The first is an alternative political preferences and interest group model. Roe stresses the relative power of left versus right, and labor versus capital. But he does not consider issues and interest groups--stressed by Raghuram Rajan and Luigi Zingales --that cut across the class divide, such as industrial sectors, agriculture, religion, and constitutional disputes. The second alternative political model looks at political institutions: Divergence in outcomes reflects differences not in preferences but in the mechanisms of preference aggregation, such as electoral laws, federalism, legislative-executive relations, and party systems. Corporate governance outcomes may reflect, as Marco Pagano and Paolo Volpin argue, the degree to which institutions favor specific coalition formation. Roe simplifies for the purpose of research. His argument is parsimonious. His account of specific country cases, as opposed to the statistical tests, is quite nuanced, subtle, complex, and astute. In fact, in his work I can find passages that demonstrate his complete awareness of most of my objections. He does not, however, consider how these nuances could be integrated into alternative political variables that need examination on their own terms. As a political scientist, my criticisms focus on the political account. This seems appropriate, as politics is the center of his argument. A law professor or economist might pay more attention to Roe's presentation of those arguments. I choose only to summarize his interpretations of the legal and economic issues, and instead focus my comments on his particular version of the political argument. Part I of this Review lays out Roe's political argument and his empirical test of it. Part II explores the contest between Roe's political argument and LLS&V's QCL. Part III situates Roe's political argument in relationship to other political interpretations. Part IV probes the implications of Roe's argument for public policy issues. Part V categorizes the various meanings given to politics in arguments about corporate governance.
The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt
111 Yale L.J. 1499 (2002) Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--none of this appealed to us anymore. "I hate war and so does Eleanor," opined FDR in the oft-repeated lyrics of Pete Seeger. War became a subject for ironic disdain. As Tom Lehrer caught the mood of the 1960s: "We only want the world to know that we support the status quo. . . . So when in doubt, Send the Marines!" Behind this disdain for war lies as well a distaste for the Romantic view of the world that tends to glorify the nation and war as an expression of patriotism. As Nancy Rosenblum argues, in the Romantic view of the world, war and militarism become sources of inspiration. Identifying with an ideology worth dying for, accepting a place in the hierarchy of command, becoming part of the fighting collective--these are actions and commitments that lift men out of the quotidian and enable them to feel that their lives express a deeper meaning. Revolutions and wars of self-determination have always appealed to Romantics. In the beginning of the nineteenth century, the Greek war of independence captured Byron's imagination. The War of 1848 brought Francis Lieber face to face with the glory of battle. The Spanish Civil War had a similar appeal in the twentieth century. As Barbara Ehrenreich describes the popular reaction to World War I, the outbreak of hostilities in 1914 unleashed "a veritable frenzy of enthusiasm, . . . not an enthusiasm for killing or loot, . . . but for something far more uplifting and worthy." The aversion to war that set in after Hiroshima and Vietnam represented a rejection of this Romantic sensibility. Finding meaning in warfare was relegated to the outdated attitudes of another time. In popular culture, at least, things have begun changing, and the shift became evident even before September 11. If the postwar and Vietnam eras found expression in films like Dr. Strangelove and Apocalypse Now, the new spirit of patriotism became visible in Steven Spielberg's film Saving Private Ryan and in Tom Brokaw's bestseller The Greatest Generation. Slightly more than fifty years after the event, the invasion of Normandy became a focal point of nostalgia and renewed interest in the lives of heroes bound together in the brotherhood of battle. Consider that Joseph Ellis, best-selling historian and professor at Mount Holyoke College, made up heroic military adventures to please his students. It would have been unthinkable for a professor circa 1970 or 1980 to think that he could impress a university audience by pretending to have fought against the Viet Cong. The recent call to arms against terrorism came when many Americans were yearning to believe, once again, that our highest calling lay in going to war for freedom and the American way. Whatever may happen in the culture at large, the law has never been a particularly hospitable place for poets and Romantics yearning for peak moments of experience. Perhaps some lawyers who litigate grand political issues experience something like Romantics going to war. But by and large, we in the academic world are committed to the orderly life and, at least on the surface of things, to a set of ideas that I describe as the opposite of the Romantic ethic. We advocate the principles of voluntary choice, methodological individualism, and individual responsibility. All challenges to the hegemonic way of thinking are simply accommodated as variations on individual needs and preferences. For want of a better term, I refer to this collection of ideas as liberalism. Not many would dissent from the claim that the dominant culture of the law school world is this ever-yielding, all-encompassing form of liberalism--the "L" word used, of course, in the philosophical rather than the political sense. There are variations of liberal jurisprudence but there is no school of Romantic jurisprudence. Admittedly the "R" word crops up here and there--in works by James Whitman on early nineteenth-century German attitudes toward Roman law, Steve Shiffrin on the First Amendment, and Vivian Curran on the disputed distinction between common law and civil law. A Lexis search reveals about 500 documents in the year 2001 containing the word "liberalism." In the entire database of law reviews, there are about the same number of references to "Romanticism," and often the use of the word is incidental or dismissive, as in the expression "naïve Romanticism." A single methodology dominates the legal discourse of our time. Whether the talk is of law and economics, of constitutional law, of corrective justice, or of human rights, the methodology remains the same. What counts is individuals, their rights, their preferences, their welfare. Perhaps we are missing something by ignoring the impulses that led Romantics to worship an expansive self that could identify with the entire nation as an actor in history. The Romantics in Germany, in France, and in England--though there were ample differences among them--created an alternative to methodological individualism. They developed a way of thinking about the self and about the nation that challenges us to reconsider liberal assumptions about both the virtues and the vices of collective entities of which we are a part. Of all the attributes of collective entities, the phenomenon of collective wrongdoing offers the greatest challenge. I want to take seriously the possibility that entire bodies of people, in particular the nations of which we are a part, can be guilty for the crimes actually carried out by a few. It is obvious that this possibility of collective guilt flouts liberal premises, which hold that only individuals can have the mens rea and tender the malice necessary to be held guilty for wrongdoing. Though I probably have more sympathy for collective guilt than can be found in the current academic culture, I conceive of this Article as devoted not to a thesis but to a problem. The problem is whether it is acceptable to ascribe guilt to collective actors and particularly to nations like the United States, France, and Germany. The problem, I argue, is an outgrowth of larger conflict between the mentality of liberals and the sentiments of Romantics. For liberals and Romantics at war, this is one of the primary intellectual fields of battle. As the fight over collective guilt is won or lost, so are larger stakes decided: Is the individual the ultimate unit of action and responsibility, or are we, as individuals, invariably implicated by the actions of the groups of which we are a part?
Categorical Federalism: Jurisdiction, Gender, and the Globe
111 Yale L.J. 619 (2001) An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense that they are neither exclusive nor necessarily enduring. With an understanding that "the local" and "the national" are not naturally bounded sites, multi-faceted federalism serves as a reminder about how much work is required to make democratic institutions accountable, at any level. The diminished clarity of physical boundaries becomes an invitation to renew interest in the work of local, subnational, and transnational structures, to interrogate current practices, and to imagine new ones. Freed from a sense of siege and a desire for fortifications, inquiry can proceed about the vitality of the United States's institutions and the array of joint ventures that subnational organizations have created. How could federalism discussions change? First, United States history ought to be retold to recognize the impressive contributions of local political structures. Rather than reading this century as a triumph of the national on the one hand or as a narrow escape from federal overreaching on the other, the persistence of local governance structures should be highlighted. Take the example of Indian tribes, which, in the face of federal efforts expressly aimed at "termination" of tribal identity, have had force sufficient to require return of tribal artifacts and the fulfillment of treaty obligations. Consider also the powerful role of states and cities, which, as demonstrated by the election of 2000, remain central players in national elections. Not only have local forms proven to be notably resistant to collapse through nationalization, they have also generated a range of national but not federal institutions. Indeed, as Theda Skocpol comments, the layers of federalism with its multiple sites of power create an "opportunity structure" that has made the United States specially nurturant to an array of associations. Thus, and second, we ought to pay more attention to the legal and political import of the many forms of federalism extant within this country. One important example is the interstate compact, which permits lawful means for joint ventures between contracting states. A classical use of compacts has been to resolve border disputes. But dozens of compacts now do more, ranging from sharing natural resources to managing transportation systems to administering economic programs. The use of compacts increased during the twentieth century, and a greater number and more varieties (including interstate agreements that do not result in formal legal compacts) are likely in the coming years. Attention to such agreements opens up possibilities for legislative innovation. For example, why assume that a new cause of action for VAWA victims could only exist in a state or a federal court? State court systems might coordinate their responses to victims of gender-based violence, as they already coordinate the movement and transfer of prisoners, and as they have begun to do in response to certain kinds of multistate actions such as mass torts and consumer products litigation. Further, in an array of such aggregate litigations (including a school desegregation case in Baltimore, asbestos claims in New York, and environmental injuries in Alaska), state and federal judges have crossed jurisdictional lines to respond to shared problems. A comparable joint venture, drawing on state courts' claimed advantages from working directly with families in disarray and on federal courts' association with equality law, could be forged to address violence against women. In addition to prompting invention, awareness of interstate compacts and judicial joint ventures ought to prompt sustained investigation into the allocation of power within such agreements. Who has decisionmaking power? What patronage arrangements are facilitated? Should law and policy create incentives for or strictures on making such accords? For example, should multistate agreements be channeled through the compact model, requiring congressional approval, or ought we be supportive of more diverse and less formal forms of such contracts? Should legal rules, such as the presumptive longevity of interstate compacts and the current formal barriers to joint venturing by state and federal judges, be restructured? Compacts could be conceived either as threats to the intelligibility of states or as a kind of "morphing" of states, in issue-specific arenas, to take into account subject matters that do not track state boundaries. Responsive policymaking ought to depend on a thicker understanding of the degree to which formal compacts enhance the visibility and accountability of governing structures, as well as better empiricism on the frequency and form of noncompact multistate agreements. The central question is the degree to which compacts enhance or impede democratic goals identified with state-based federalism, including accountability and participation. Third, as joint and interactive decisionmaking becomes the subject of lawmaking, conflicts should be addressed under the rubric of preemption doctrine. Given that state and federal laws address aspects of family law or international relations, the issues become narrowed to whether, in a particular circumstance, legal regimes can cohabit and whether one set of rules needs to be set aside. These focused inquiries would require judges to retreat from their forays into global political theory and thin historicizing. Instead, they would have to detail how and why joint governance was or was not possible in a specific context. Crosby, the Court's decision in the Massachusetts Burma case, is exemplary of this preferable, albeit more mundane and less powerful, role for judges, confined to discussion of the degree to which redundant or overlapping governance can be tolerated in a particular instance. That such decisions do not etch clear lines for all further lawmaking becomes their virtue, as adjudication becomes appropriately "local" in the sense of being limited by legal rules applied to discrete factual circumstances. Of course, preemption is not a magic bullet. Freewheeling Justices can impute intent to legislation and hence enhance their powers, but the methodology--examine statutes, apply facts, presume concurrency--cabins the reach of even the adventuresome. Fourth, in addition to looking within the United States to survey and to analyze the range of federalism here, multi-faceted federalism may draw on lessons from abroad. The challenges of coexisting and coextensive legal regimes are common to all federations, which must address when to permit shared "competence" and when to require preemption. While one cannot transport one federation's solution to another, countries can learn of the plausibility of particular delineations of authority. Take, for example, the increasing and formalized position of NGOs in the United Nations, which permits these nongovernmental groups to have a place in some official meetings. In 1948, 41 NGOs played an official consultative role; in 1993, 978 did so. Scholars of NGOs argue that the increased prevalence of NGOs should prompt a revision of theories about how authority and power are exercised. What role NGOs play in the United States has been given less attention. For example, might the National Association of Attorneys General be understood as an NGO, representing segments of state interests distinct from those presented through senators and members of Congress? Should the work of a host of such organizations become a part of political policymaking through formalized roles? What are the positive and the perverse effects of commingling or disaggregating the idea of "state interests" and states' decisional authority? In short, once willing to let go of categorical federalism's strictures, opportunities for invention multiply. The options are great because political practitioners are engaging in a range of group-based actions, enlisting the local, state-level, national, and transnational, the governmental and the nongovernmental, and whatever other entities they can, all to bring them closer to whatever their aspirations may be. Fifth, multi-faceted federalism makes more difficult the valorization of certain levels of government as specially able to get any particular social policy "right." Take the claim that the "national" is a venue committed to civil rights and that the federal courts are specially able to implement such commitments. Relying on the symbolic capital of a link between national lawmaking and civil rights, VAWA proponents argued that it was a traditional function of the national government to protect equality and to do so by vesting federal judges with jurisdiction. But that "tradition" was painfully incomplete when the country was founded, invigorated after the Civil War, then dismantled, then renewed, and now called again into question. The identity of the federal courts has shifted during the twentieth century--at times courts have been seen to be institutions of oppression (by labor and other populists) and at other times perceived to be institutions of salvation (by civil rights claimants). Both state and national constitutions speak of their commitments to equality, as do many other countries' constitutions and many international declarations. But to embody equality requires recommitment of national law in that direction, not simply the invocation of the nation as if it has intrinsically and inevitably allied itself with practices of equality. To equate the "local" with progressive human rights movements would also be erroneous. Above, I discussed a series of local innovations--focused on forced labor, land mines, apartheid, and women's rights--cheerfully allied with transnational human rights movements. But another group of local activities in the United States stands in opposition to such efforts and has been the brunt of targeted criticism from abroad. For example, the "local" in the United States has insisted on its right to execute individuals, juveniles included, despite transnational efforts to ban capital punishment. The phrase "states' rights" has been a shorthand for hostility to African Americans. Localities have also enacted ordinances aimed at limiting rights of lesbians and gays and of immigrants. In short, multi-faceted federalism counsels against assuming that either "the national" or "the local" has an intrinsically rosy glow. In parallel fashion, while CEDAW has been discussed as a powerful example of the possibilities of transnationalism to improve gender relations, neither transnational lawmaking nor globalism is necessarily an engine of equality. Indeed, some current expressions of globalization do significant harm to women. An oft-cited example is that offshore manufacturing is made attractive by the unending supply of impoverished female workforces, seeking to survive through a range of underpaid jobs. I claim no essence for globalization but only its existence, in that physical distances which had previously precluded certain forms of interactions no longer serve that function. What globalization--under current market and political conditions--has done is promote interest in forms of governance that regulate transactions outside and beyond the nation-state. That interest, in turn, has generated new opportunities for women to advance equality claims. Equality is not a necessary outcome of federating, but with the formulations of new structures come opportunities for alternative allocation of power. Gaps in governance are spaces in which all power-seekers, be they entrenched or newly fabricated, try to gain toeholds. And in this era, women's rights and human rights advocates have prompted governance institutions to make statements of commitment to equal treatment. That women have windows of opportunity to participate in generating laws does not necessarily result in laws good for all women. Serious questions, constant within feminism, remain about how to shape such equality demands and about which women will benefit. The category "women"--like the others discussed herein--is neither unitary nor necessarily permanent. Indeed, proponents of many forms of affirmative action deploy categories of identity in the hope of their future incoherence. Further, provisions that may benefit one group of women may not serve others of differing classes and races. The debates about the enactment of VAWA addressed such concerns. Transnational rights advanced in the name of women must also be interrogated to understand how their applications vary. Moreover, words about equality committed to paper in transnational documents such as CEDAW do not necessarily translate into conditions of equality in the lives of women and men. For example, some of the 165 countries that have ratified CEDAW have conditions oppressive to women more detrimental than those in the United States, a country that has not ratified CEDAW. Further, even when countries ratified CEDAW, they did so with unusually high numbers of reservations. In addition, CEDAW has limited means of implementation. CEDAW constitutes an achievement of significant legal and political proportions, but its translation into practice has not fully materialized. Similarly, I make no claim that international organizations are particularly receptive to women's rights; indeed, some are notoriously poor places for women to work. Nor are NGOs a glorious alternative, as they often not only reflect gendered allocations of work and authority but risk reinscribing them. Rather, globalism offers a contested political space, an interesting, additional place of potential power, of shifting categories and of new organizations. Proponents of women's rights have had the occasion to work in that venue and have been able to bring attention to injuries and their sources that heretofore were not of great interest to international institutions. A contemporary account can properly point to the correlation between expressions of human rights and certain transnational efforts made possible by historically specific conditions but ought not to lapse into essentializing any level of governance as intrinsically a source of equality norms. Moving toward a multi-faceted approach thus requires a willingness to face such complexities. The nation-state has been the means of governance for some three centuries, and for each harm that form of government has generated, a benefit can also be detailed. The perceived desirability of shifts that diminish the import of the nation as the key unit of governance depends in part on empirical assessments resting inevitably on debatable databases and a host of unknowns. If the nation no longer serves as a unit of accountability, if (for example) within the United States the "one voice" doctrine of international law relaxes, will a larger role for regions and localities do harm to the political stability of the United States and whatever human rights agendas it espouses? Might categorical federalism be a better route to import evolving equality norms into United States jurisprudence, based on an understanding that international law is itself a part of national law and therefore could preempt divergent state practices? Are international human rights obligations assigned at the national level at risk if localities gain prominence and the reliance on national borders diminishes? These questions are not, of course, novel or unique to the United States. Every federation is an ongoing experiment in how to maintain accountability and distinctive agendas concurrent with the reduction of the saliency of borders. While at one time, physical power and physical space provided at least temporizing answers that made plausible that unity of power (democratic or not), those boundaries no longer have the capacity to contain. The argument is not that place is irrelevant. The local is very much present in each person's life, manifested by the persons with whom one forms families and communities, by the weather systems that shape daily routines, and by the regions that are proximate and offer either friendship or hostility. But the boundaries of a given nation no longer control markets and can no longer promise physical security. In a parallel fashion, the family unit (predicated on very undemocratic power) once controlled goods, services, and people. The revolt against patriarchal families also ruptures the ability to confine familiar relationships to only certain kinds of pairings and offspring. The litigation about the civil remedy in VAWA raised an enduring problem of United States constitutional law about how to divide the power of judgment between courts and legislatures and, to a lesser extent, between states and Congress. The majority sought to answer by turning back to old images of state boundaries and to worn equations of jurisdiction and gender. The assumptions that located certain forms of action in the nation and other forms of action in local institutions have been overtaken by the permeability of institutions, both large scale political and small scale familial. Therefore, a retreat to those categories becomes a willed but unsuccessful effort to buffer oneself and one's country from the transformations with which one has to live. One cannot essentialize particular forms of federated governance as guarantees of certain outcomes or particular kinds of family relationships as generative of human growth. In the end, neither categorical nor multi-faceted federalism provides solutions to the problem of democratic organization and accountability. These are but the forms that may, depending on the content and meaning humans import to them, serve such ends.
Connecticut Retrenches: A Proposal To Save the Affordable Housing Appeals Procedure
110 Yale L.J. 1247 (2001)