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This Symposium has been a wonderful forum for identifying a number of challenges that Law and Development will face going forward. Like many of the contributors, I have thought about these issues as both an academic and as a practitioner/government adviser. I have concluded that the Law and Development movement suffers from both an inability to get good results (if we could figure out what “good” results actually are) and a lack of follow up regarding implementation efforts. As to the former, it is not clear to me that those of us in the field actually know what results we want to achieve—or that we can actually (and accurately) measure them. Mariana Prado noted that in some areas it is easy to gauge success, such as in antitrust or telecoms. If telecom prices go down, Prado suggests, the antitrust suit is successful. I would argue that quantifying success is not so easy, even in these areas. In many cases, looking at easily quantifiable measures such as case counts or the number of successful prosecutions does not in fact measure success. Agencies might bring lots of small but unimportant antitrust cases to raise their number of wins. Moreover, agencies might bring a “winning” case even if the underlying economics behind the case do not mesh with any real consumer loss. For example, in a given developing world country, competitors might push the agency to bring a series of vertical restraints cases against efficient competitors. Finally, even if lower telecom rates result from an antitrust win, is such a win really a success of Law and Development? We have serious endogeneity issues in trying to attribute reduced telecom rates to a particular technical assistance intervention. It could be that rates would have gone lower regardless of the antitrust case. Foreign entrants, changes in technology across platforms (such as voice over internet or wimax), or a change in tariff policy by the telecom regulator may have affected telecom rates.

In When Obscenity Discriminates, I argued that the First Amendment’s obscenity doctrine has generated discriminatory collateral effects against gays and lesbians, and that those collateral effects generate a need to refine the obscenity doctrine in light of the Supreme Court’s decision in Lawrence v. Texas. In his response, If Obscenity Were to Discriminate, Professor Barry McDonald agrees with my essay’s “core insight—that the Miller obscenity test should be applied in a manner that is neutral as to the sexual orientation of the pertinent actors,” and notes that this insight “appears to have substantial support in basic principles of the Court’s equal protection and First Amendment jurisprudence.” McDonald builds from that “core insight” by “tak[ing] the liberty of recasting these arguments as more modest claims that the obscenity doctrine needs to be modified in light of Lawrence in order to achieve a principled and coherent constitutional jurisprudence as it relates to the Court’s treatment of gay sex.” However, the “more modest claim[]” that McDonald purports to make is, in fact, the claim made in my essay, namely, to “refin[e]—but not overturn[]—the obscenity test set forth in Miller” so that it distinguishes between sex and sexual orientation. Thus, despite Professor McDonald’s perception to the contrary, he and I are in closer agreement about the doctrine’s needed changes. On some points, however, we do divide, and our division derives from two sources. First, and most fundamentally, we disagree about how to measure doctrinal effect. Although McDonald and I agree that the obscenity doctrine should not be applied in a way that is biased toward homosexual content, he and I part ways on the issue of determining when to measure the effects of a biased obscenity test. For McDonald, unless and until the obscenity test is applied in a court of law in a biased manner—that is, unless and until a work which would not constitute obscenity but for its homosexual content is held to be unprotected—the obscenity test has not generated any discriminatory effect. This source of disagreement is fundamental because it divides McDonald and me on the question of implementation and, ultimately, on whether the obscenity doctrine merits refinement. To McDonald, the obscenity doctrine is fine as is unless and until it is misapplied in court; I believe, on the other hand, that the doctrine’s discriminatory effects are inherent to the test used and thus the doctrine merits refinement even absent “misapplication” in court. Part II of this Reply responds to McDonald’s objections that derive from our disagreement on measuring doctrinal effect.

Reports of the death of Title VII’s disparate impact theory of discrimination in the wake of Ricci v. DeStefano may be exaggerated. Widely praised and widely criticized in the newspapers and the blogosphere, Ricci is the latest, but not the last, chapter in a long-running feud between Congress and the Supreme Court regarding disparate impact. As the Supreme Court summarized the theory in International Brotherhood of Teamsters v. United States,disparate impact discrimination is the use of “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” First announced by the Supreme Court in Griggs v. Duke Power Co., the theory required a plaintiff to establish a prima facie case of disparate impact discrimination by showing that the challenged employment practice, although facially neutral in its treatment of different groups, in fact fell more harshly on one group, say African Americans or women, than another group, say whites or males. Once that prima facie case was established, the defendant had the burden of persuading the court that a “business necessity” or “job relation” justified the challenged practice. When the challenged practice was a test with a disparate impact, the employer carried this burden by establishing its validity under technical testing standards developed originally by industrial psychologists and later articulated in federal agency guidelines.

I would like to take up Anna Gelpern’s invitation to define the study of Law and Development broadly and to reject the presumption that the inquiry will focus narrowly on the law-related projects of bilateral aid agencies and international organizations. I am interested in the relationship between law on the one hand and, on the other hand, development (however defined), and it is not clear to me that externally directed “Law and Development” projects are always central to understanding that relationship. (Isn’t that a reasonable inference to draw from all of the studies that question the impact of those projects?) Don’t get me wrong, I think it is often crucially important to take foreign actors into account when trying to understand where the “law” part of the equation comes from, as well as what factors besides law might be influencing development. But I am skeptical of the notion that foreign actors are always central to the story, especially in some of the larger developing countries; do we really understand the legal systems of Brazil, India, and China best by focusing on the components influenced by the World Bank and the IMF? As far as the future of Law and Development is concerned, I believe that it will and should involve becoming even more of a social science. I also believe, however, that the contributions to this Symposium have identified many of the pitfalls that lie in that direction. To begin with, there are obviously methodological questions about what empirical methods are best suited to uncovering the kinds of causal relationships between law and social outcomes we are looking for and theoretical questions about what legal and social variables ought to be measured. But I think that there are even more profound questions to be asked about the entire enterprise, especially if the purpose is to give policymakers insights into “what works.”

My comments will be mostly connected to Tom’s third question, relating to the future, and I would like to start by responding to Salil Mehra. I generally agree that there is an excessive focus on replicable “tools” and “best practices” in Law and Development studies, but I think there are a lot of questions to be asked regarding Mehra’s suggestion that the way forward involves addressing embedded cultural practices and institutions. In fact, there are currently a number of scholars (myself included) emphasizing the importance of looking at the interaction between so-called informal institutions (such as cultural practices, social norms, and historically entrenched attitudes and values). The problem is that although most of these analyses are very helpful in understanding what went wrong and why the “toolkit” did not work in a given context, they do not tell us how to improve our efforts going forward. So, like the “blueprint” Law and Development scholars, the “context matters” Law and Development scholars are not helping the field move forward.

Welcome to the Law and Development blog symposium! We are thrilled to have a fantastic array of participants lined up and trust that the discussion will be lively. In our call for participation, we asked people to reflect on the diverse conceptions of “law and development” and to take the opportunity to think about the directions the field is headed. I would like to begin by posing three questions for consideration, though I anticipate that we may end up heading in quite different directions as well. First, as an initial question, is Law and Development really a field? In a recent paper, Brian Tamanaha argues that Law and Development is “a poorly constructed category that lacks internal coherence . . . . Law and development work is better seen, instead, as an agglomeration of projects perpetuated by motivated actors supported by funding.” Much depends, of course, on what we mean by a field. As a field of applied activity, Law and Development seems to have a clear boundary involving reform projects related to legal institutions. As a scholarly field, however, it may be less clear. On the one hand, we have two nascent journals, the Law and Development Review and the Hague Journal on the Rule of Law, which is surely one sign of the institutionalization of a scholarly field. On the other hand, one might argue that there is sufficient lack of consensus on method and topic to deserve the title “field.” But if not a field, what is it?

Scholars have long debated the merits of various theories for interpreting statutes. On one side, textualists argue for close adherence to text. On the other side are those who interpret statutes by reference to legislative intent. At the center of this debate is the seminal 1891 Supreme Court case Church of the Holy Trinity v. United States. That case considered whether the Alien Contract Labor Act, which prohibited the importation of “labor or service of any kind,” barred a church from hiring an English minister. Writing for the Court, Justice Brewer consciously departed from statutory language and exempted the hiring. Textualist and intentionalist interpreters alike regard Holy Trinity as a crucial test case for assessing theories of interpretation. Months before the Supreme Court’s decision in Holy Trinity, however, Congress specifically excluded ministers from the Act. Remarkably, the debate gives scant attention to this exclusion. The failure to consider such a highly relevant statute is no isolated mistake. Rather, it reflects a larger blind spot in our thinking about statutory interpretation. Continuing in three parts, this Essay explores the impact of the exclusion on that thinking.

A grand alliance is forming, and new trenches are being dug on the old and hallowed battleground of the Constitution. Waving the stars and stripes of “constitutional design,” and richly equipping themselves with the weaponry of reason, scholars like Richard Fallon, Sanford Levinson, and Jack Balkin have taken the field to determine “what provisions for judicial review (if any) ought to exist in constitutions for all societies whose people and legislatures are seriously committed to respecting rights,” and to avoiding “constitutional crises” by “careful planning.” Fallon, a self-proclaimed “system-designer,” applauds himself for having “plowed rich ground.” Levinson and Balkin claim to be revealing a “secret” that, if they are to be believed, has not only gone untold and unnoticed since the nation’s Founding, but could have avoided the near apocalypse of our Civil War. Frederick Schauer’s ambition—to breed a race of lawyers and judges equal to the ignominy of slavishly adhering to precedent—is no less breathtaking. Asserting that “following precedents even when they seem wrong to the decision maker is . . . a large part of law,” he proposes to conduct empirical experiments to determine: (1)“whether those who self-select for legal training (or are selected for legal training)” are superior, before receiving that training, “at subjugating their preferences for the right answer to a norm of precedent”; (2)“whether those who are trained in the constraints of precedent (recent graduates of law school, for example) are better at following uncomfortable (to them) precedents than those who have yet to receive such training”; and (3)“whether those who self-select for judging, or who are selected to be judges, are better at following precedent than practicing lawyers of similar experience.” Whether these scholars’ wholesale embrace of intelligent design is the means to perfect constitutional systems commensurate with the universal call for freedom, or whether it desecrates the Founders’ legacy of a constitutional frame attributable neither to “human genius” nor to “reason and reflection,” but only to “time and experience,” remains to be decided; and it can only be hoped that the tenor of the debate will prove less rancorous than the all-out war currently raging between the proponents of intelligent design and those of evolution in the field of biology.

Few familiar with the story of Nadya Suleman­­—a single, low-income, California mother of six who recently gave birth to octuplets conceived through in vitro fertilization (IVF)—do not instinctively react with outrage. Fourteen children (or even one) are a daunting number under the best of conditions, and the conditions surrounding the Suleman births are far from ideal. Yet, as the old saying goes, “hard facts make bad law,” and Suleman, dubbed “the Octomom” by the media, exemplifies the truth of this adage. Suleman’s hard facts have led not only to bad regulatory reform proposals, but also to public fury and social hysteria. Critics have heaped both fascination and scorn on Suleman, and legislators, policymakers, and others have called for a variety of new restrictions on the use of assisted reproductive technologies (ARTs) in response to the Octomom controversy. The most recent and thoughtful of these proposals is from Naomi Cahn and Jennifer Collins, who advocate a variety of ART-related reforms, including record-keeping requirements, limits on the number of embryos that can be transferred during any single IVF cycle, informed consent rules, and insurance coverage regulation. Not surprisingly, given the high quality and inventiveness of prior work from each of these authors, the Cahn and Collins framework for ART governance has much to recommend it. I take issue, however, with the Cahn and Collins embryo-transfer limit proposal and argue in this response that such a limit would produce fewer benefits and higher costs than Cahn and Collins assume. Moreover, if the fertility industry is to be subjected to greater oversight, such oversight should stem from a balancing of what is to be gained and lost in the process, rather than through a hasty response to a sad and disturbing—but aberrant—case.

I agree with Professors Cahn and Collins that “eight is enough.” I am perhaps more skeptical than they are about assisting Nadya Suleman, a mother who already has six children, to have more. I wonder whose funds financed fertility treatments for a single, unemployed mom on disability benefits, and, perhaps even more critically, who will fund the children’s ongoing care. I am certainly concerned about the dubious ethical standards of the doctor who provided the reproductive care. But I also have serious reservations about anyone choosing to impose my views—or those of others—on the country as a whole. I therefore applaud Professors Cahn and Collins for leading with the question, “Should we regulate?” and for framing their proposals in the context of a principled distinction between regulations of the type that tend to be federally regulated in other contexts (how many embryos to implant in a single in vitro procedure, for example) and personal decisions better left to individual autonomy (such as whether a single mother ought to have more children). I fear, however, that although the distinction they draw is principled and in many ways persuasive, it is a line unlikely to stick and unlikely to fully address the ethical framework for reproductive technologies if in fact it does take hold. My concerns do not proceed from any reflexive libertarianism. I do not reject government regulations per se, nor do I believe that the market, through the magic of the unseen hand, will necessarily correct misguided decisions to implant six embryos in an unemployed thirty-two-year old. Instead, I question the framework Cahn and Collins develop for determining when and what type of regulation is appropriate. I argue for a dynamic theory of regulation, informed by the concept of evolutionary economics, that would ask not just what kind of regulations are needed, but also how regulatory implementation is likely to affect who becomes a patient, what kinds of doctors are likely to provide the services they seek, and where and when medical treatment is likely to occur. This analysis is dynamic—and evolutionary—not in a biological sense, but in the sense that it anticipates how change in one arena, such as the expansion of insurance coverage, might affect another area, such as the number of embryos likely to be implanted or the need to regulate issues not of concern in today’s fertility practices. In short, I am more concerned about whether fertility clinics locate in Detroit or Windsor, whether President Obama or a Georgia governor appoints the regulators, and whether Ms. Suleman can afford in vitro fertilization at all than I am with having a government official stop the next doctor willing to implant too many embryos.