My book on Marbury v. Madison argues — Marshall is an incredibly key figure, and it is the case that Jefferson is very much trying to control the federal judiciary. I read Marbury v. Madison as obviously being important in the creation of the idea of judicial review, but I think that is the third most important thing that Marbury v. Madison does. In connection with what the Federalist judges are doing about jury control and creating a legal profession and the like, Marbury is also centrally important in articulating the idea of the rule of law as we in this room as American lawyers understand it today. And in order to articulate the idea that there are some things that are ruled by law that is independent of the next thing, namely politics, Marshall basically articulates the beginnings of the political question doctrine. And Marshall is clear that there are some things that are legal — namely, individual rights are legal — and there are other things that are political. Marbury v. Madison is clear that the courts will not get involved in political issues, and it's clear that on issues of individual rights, especially property rights, the political branches have no business interfering with the courts other than through appropriate kinds of legislation that the political branches are permitted to adopt legislatively. But certainly the Executive cannot be interfering with the law and the rule of law when it comes to individual rights.

Marshall is able to get away with this partly because the Jeffersonian presidency isn't that powerful, and in the end Jefferson doesn't want to be a powerful President. Jefferson is elected basically on a program of taking power away from the federal Executive and Congress, because the Adams administration had been too powerful. Marshall gets away with it because of Jefferson getting involved in other nasty political things that take his attention away from the courts, like buying Louisiana, like the embargo of 1807. And Marshall gets away with it simply because he has staying power. He's there for thirty years in case after case after case, reiterating the principle of the rule of law and the separation of law and politics that he articulates in Marbury v. Madison. He reiterates this over and over again for the next thirty years, and he sees a number of presidents go by as he's doing that. By the 1830s, the principle is beginning to be established.

MR. ZULACK: I don't mean to be very simple, but what is the heritage of Gorbachev, in terms of the rule of law, human rights in Russia? I know what his heritage is in terms of trying to do away with nuclear weapons, which is quite extraordinary, but what is it in this other area?

PROF. PISTOR: I think it's ambivalent. We see both things: on the one hand we see the creation of the Constitutional Court, which is more a concession to what we might call a rule of law principle. Gorbachev coins in this period the term “socialist rule of law system.” It's still socialist, but it is a rule of law. So he's pushing on that front. At the same time, when the Baltic republics first tried to begin some rebellions, he did send in tanks without hesitating a second. I think he worked very much under the pressures of a system that he knew was crumbling. He was part of a group that had investigated how the agricultural sector was going wrong in the early 1980s — the Novosibirsk Manifesto. He was very much aware of the major problems that the country was facing. But I think he was still a Party figure. He was still trying to preserve the Soviet Union. And to make sure this would happen, he was also taking measures that would be in clear violation of our norms of human rights. Nonetheless, I would give him credit for trying to instill more principles of accountability through legal mechanisms, through some local elections, by bringing that process on the way. But it is ambivalent.

PROF. WORTMAN: I feel the same way. He is sort of a tragic figure in that he brought down the structure he was trying to perpetuate. I can say that when he was at Columbia — we've had all three at Columbia: Gorbachev, Yeltsin, and Putin — Gorbachev and Yeltsin were really super, larger-than-life figures, who orated. Putin was the most human. He got up there and answered questions directly to students with no help, very intelligently, and you did not have a sense that this was a super-ordinate figure. But the one thing in Gorbachev's speech which was interesting is that even though he talked about humanity and ideals, the person he defended in Russia — this was when Yeltsin was in (whom he hated, obviously) — was Aleksander Lukashenko. And he made a very strong defense of Lukashenko, which does not say much for his respect for the law.

PROF. BURBANK: I'd like to say one thing about that, and that is that the idea of human rights, especially individual rights, is, I would say, not deeply embedded in Russian legal culture or society at all. Perhaps one could even safely say that in much of the world it's not there, and it's not a “natural” idea for people who are brought up in systems of strong, top-down political power. So even in the imperial period, while we have eloquent jurists and intellectuals defending notions of “natural rights” in a nineteenth-century context, the legal system itself simply does not address itself in the nineteenth century (until arguably 1906) to the notion of individuals possessing rights. Instead, rights in the Russian tradition, in my view, are granted by the sovereign to collective groups of subjects. That principle of granting or taking away rights, as opposed to the notion of a natural, individualized human being with rights, is the dominant one in Russia.

MR. ZULACK: My last question: do demographics really trump everything that we're talking about? Was the crumbling of the economic system in the Soviet Union really directly related to the Stalin massacres of the 1930s, and is the resurgence now a recovery from that period of time? There was a demographer in Paris in 1976 who basically predicted precisely what was going to happen to the Soviet Union in the 1980s from demographics. So the question is: is all of what we're talking about really governed by how many people there are, how much grain there is, what the production is?

PROF. PISTOR: I think there's a lot to do with demography. People have also shown this with the East Asian Miracle. There's a lot of demography in play, and I think we ignore that because we focus so much on the institutions. But I think that there is also substantial evidence that the entire production assets were deteriorating rapidly throughout the 1970s and 1980s, so I don't think that it's only demography.