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Jurisdictional Synergies in the Caribbean

Rising threats to judicial independence—in Hungary, Poland, and elsewhere around the world—are putting into stark relief the political and institutional challenges faced by “the weakest branch.” It is more important than ever to think seriously about how courts gain and maintain the legitimacy necessary for effective authority; how they develop and retain their independence; and whether judicial design might provide insights or answers.

In Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies, Salvatore Caserta and Mikael Rask Madsen shed new light on these questions through the experiences of the Caribbean Court of Justice (CCJ). In addition to providing a helpful exposition on the creation and early development of the CCJ, the Article explores the elements of judicial design that have contributed to the CCJ’s growing authority and legitimacy. The most engrossing analysis is that anticipated by the title: the CCJ’s “unique double jurisdiction,” which results in “two relatively different constituencies and operational contexts” yet has created important synergies for judicial empowerment.

Caserta and Madsen are scholars at the University of Copenhagen, which houses iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts. The Centre produces excellent (and extensive) work on international courts (ICs), their role in a globalizing legal order, and their impact on politics and society. Given their vantage point, Caserta and Madsen naturally frame the article (part of a larger symposium) in light of broad theories of international court authority (although their insights have relevance to national courts as well). The contribution to the IC debate is expositional: the CCJ serves as a case-study of an international court that has progressed from “narrow authority” to one that has “intermediate authority.” More specifically, between 2005 and 2016, a growing number of practitioners and litigants “acknowledge[d] the binding nature of [the CCJ’s] rulings and act[ed] in accordance in words or deed” (P. 91.)

The project takes flight in its close attention to the mechanisms that have facilitated the strengthening of the CCJ, showcased in a deeply contextualized analysis that draws on data from forty-one interviews with a variety of key stakeholders in the broader CCJ system. For example, the authors demonstrate the importance of personnel, highlighting the critical role of appointments procedures and the political impact of the selection of Michael de la Bastide as the CCJ’s first President. De la Bastide’s stellar credentials and diversity of experiences satisfied both traditional and modern legal elites, straddling and transcending the (growing) divide in the profession. The Article brings into focus the contours of a post-colonial legal profession in an integrating region, including the nature of legal education and the changing socialization of lawyers. Of course, the critical role of individual judges in the development of an independent court is a familiar story, but the details of the Caribbean experience are fascinating.

The CCJ’s dual jurisdiction is the most unusual mechanism that has fostered its authority and independence.  The CCJ was designed to accomplish two distinct tasks: First, it serves as the court of the Caribbean Single Market and Economy. Twelve member states of the Caribbean Community (CARICOM) have accepted the court’s jurisdiction, and from this perspective, the CCJ looks similar to the European Court of Justice or to other regional courts designed to implement trade or economic-based integrationist aims. The court has original jurisdiction over Community law and has interpreted its founding treaty to allow for direct applications from private litigants. Second, it functions as a replacement for the Judicial Committee of the Privy Council as the court of last resort on issues of civil and criminal law for those Caribbean states that were former British colonies (and retained the JCPC’s jurisdiction). Thus far, only four Caribbean countries have accepted the CCJ’s appellate authority (Guyana, Barbados, Belize, and Dominica).1

The ways in which these powers have intersected and combined have served to enhance the CCJ’s importance.  The CCJ’s first cases arose under its appellate jurisdiction, supported by nationalist and de-colonizing pressures to wrest common law from the JCPC in London. In “impos[ing] itself as the main interpreter and creator of a genuine Caribbean jurisprudence” under the common law, the CCJ took on a heightened stature in the region.  Between 2005 and 2015, 143 cases were filed under its appellate jurisdiction, and the “case flow had a legitimizing effect even outside of those countries” that permitted appeals to the CCJ, producing a spillover effect. The acceptance of the CCJ’s appellate decision strengthened the CCJ’s authority over community law.  And the virtuous circle has momentum: When the CCJ decided a major case under community law, Myrie v. Barbados, with a rights-promoting result, the decision was used in countries with JCPC jurisdiction as a justification for ending appeals to the JCPC and switching to the CCJ, “regardless of the fact that [Myrie] did not concern appellate jurisdiction.”

The complicated dynamic of the CCJ’s dual role raises other questions about whether general theories of court legitimacy are relevant to the CCJ. In a 2017 article, Caserta uses the CCJ to challenge the conventional wisdom that newly established international courts should avoid politically sensitive issues to guard against backlash. He argues that best practices devised for courts focused on regional integration and economic law may not apply to the CCJ, which was expected—and designed—to engage with important political issues under its appellate jurisdiction. (Indeed, as both articles note, the CCJ’s very existence was in part driven by dissatisfaction with rights determinations made by the JCPC.)

Caserta and Madsen deftly trace the evolution of the CCJ’s authority, but they make no predictions about the future. And, of course, even authority wisely husbanded can be quickly lost. But the experience of the CCJ reminds scholars (and designers alike) of the benefits to institutional stability and judicial effectiveness that may be hidden in jurisdictional grants or other, more mundane aspects of judicial design.

  1. For a discussion of the role of the JCPC in the Caribbean, see Erin F. Delaney, An Imperial Court in a Post-Colonial Context, JOTWELL (May 30, 2017) (reviewing Tracy Robinson & Arif Bulkan, Constitutional Comparisons by A Supranational Court in Flux: The Privy Council And Caribbean Bills of Rights, 80 Modern L. Rev. 379 (2017)). []
Cite as: Erin F. Delaney, Jurisdictional Synergies in the Caribbean, JOTWELL (May 8, 2018) (reviewing Salvatore Caserta & Mikael Rask Madsen, Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies, 79 Law & Contemp. Probs. 89 (2016)), https://intl.jotwell.com/jurisdictional-synergies-in-the-caribbean/.

Decolonizing Comparative Law

Sherally Munshi, Comparative Law and Decolonizing Critique, 65 Am. J. Comp. L. 207 (2017), available at SSRN.

In her magisterial essay, Comparative Law and Decolonizing Critique, Sherally Munshi invites us to undertake a “decolonizing critique” of comparative law, which entails reflecting about “our responsibility towards and recognition of difference” and “the relevance of comparative study to the societal exigencies of our particular moment.” The occasion for the essay is a special issue of the American Journal of Comparative Law dedicated to Pierre Legrand’s book-length article Jameses at Play in which he identifies two irreconcilable strands of comparative legal studies—positivism and culturalism—advocating for the latter.

Munshi’s reading of Legrand is but a stepping stone for a momentous contribution to the debate over the raison d’être of comparative law. She proposes an “alternative approach” that “might play an important role in decolonizing and democratizing legal thought.” Her vision is one of a “broadly expanded comparative law, one that assumes a leading role in addressing an entrenched Eurocentrism in legal discourse while providing hospitable ground for a variety of critical and interdisciplinary projects, especially those that might join in the effort to decolonize higher education and to project alternative, more equitable forms of coexistence.”

How are comparativists to achieve these goals? Munshi suggests that they look to another comparative discipline—comparative literature. In the 1960s, comparative literature underwent its own process of self-examination and transformation by turning to critical theory, freeing itself from the imperative to compare and becoming “one of the most compelling sites of intellectual production in the university.” Munshi, whose Ph.D. in English and Comparative Literature focused on the experience of Indian immigrants to the United States in the early twentieth century, is well-positioned to see the field’s own learning over time.

Based on this example, she proposes four exit strategies for comparative legal scholars. First, they could abandon the practice of comparison itself, adopting instead a worldly orientation, or alternatively embracing “the notion that all study is comparative.” Second, given that comparative legal scholarship “remains resolutely Eurocentric,” offering “painfully little discussion about legal cultures outside of Europe,” comparativists could decenter Europe and broaden the cultural scope of the discipline. Third, they could shed the nation-centered model of comparison “to explore the many relationships that minoritized subjects forge with one another across national boundaries.” As Munshi’s work illustrates, this approach may involve probing “the foreignness that lies within a nation’s borders,” as in her brilliant article on Dinshah Ghadiali, one of several Indian immigrants threatened with denaturalization in the 1920-30s on the ground that they were not “white persons.” Fourth, comparative law could move to a “relational” approach to race and racism so as to uncover the colonial roots of contemporary nation-state and racial forms.

The good news is that a growing number of comparative law scholars trained and/or based in the United States and Europe are experimenting with these exits, or variations thereon, expanding the field’s frame of reference beyond its usual topics and geographic areas, including by giving voice to minority communities. For instance, Tanya Hernández’ research exposes how racial hierarchies in Latin American countries are both “obscured and elucidated” by a depiction of the United States as colorblind. Premised on the insight that being a mother is often what subordinates women, Julie Suk has embarked on a project to reframe constitutional gender equality in the United States by reference to motherhood protections in post-war European Constitutions. Anne Peters has pioneered a new branch of comparative legal research, known as “global animal law,” which treats animal interests as having intrinsic legal value in a way that is transboundary, that is, that challenges not only the legal human-animal boundary, but also nation-state boundaries. In my own study of white French judges and prosecutors’ unwillingness to reflect on racial and sexual diversity in their profession, I have also benefited from what Munshi calls “minor comparativism”—her term for a self-reflexive orientation that “sets the official image of a particular state against the reflection of its minority subjects.”

The question remains whether these haphazard efforts are sufficient even to begin comparative law’s decolonization. Should comparative legal studies undergo a process of institutional reform similar to that which transformed comparative literature fifty years ago? I read Munshi’s article as a compelling plea for law schools actively to recruit faculty with expertise beyond European legal cultures and languages and to alter their curricula to include her broadly expanded conception of comparative law. Her diagnosis also calls for academic organizations such as professional associations and journals to support and promote scholarship that breaks with the discipline’s Eurocentric and colonial roots. That her own work has been published in the American Journal of Comparative Law, the foremost U.S. peer-reviewed journal dedicated to the field, should give us hope that some movement is underway. For the change to be broad and deep, though, those of us who subscribe to her views need to sustain it in our daily thinking, teaching, mentoring, conference organizing, and of course, writing.

Cite as: Mathilde Cohen, Decolonizing Comparative Law, JOTWELL (March 27, 2018) (reviewing Sherally Munshi, Comparative Law and Decolonizing Critique, 65 Am. J. Comp. L. 207 (2017), available at SSRN), https://intl.jotwell.com/decolonizing-comparative-law/.

Cryptocurrencies, Le Bitcoin, and Regulatory Reach

Reviewing Iris M. Barsan, Legal Challenges of Initial Coin Offerings (ICO), 3 Revue Trimestrielle de Droit Financier (RTDF) (2017), available at SSRN.

Cryptocurrencies and Initial Coin Offerings (ICOs) present an extreme challenge to law organized by national boundaries. Legal Challenges of Initial Coin Offerings by Iris M. Barsan—a modestly titled (for US standards) and concise article—provides a comparative account of the regulation of cryptocurrencies. Fundamental questions are at stake: What are cryptocurrencies? Are they money? Securities? Something completely new? One of the article’s strengths is its recognition that we should care deeply about who gets to provide the answer. The article contributes to a growing literature about a hot topic by being explicit about the jurisdictional and choice-of-law issues inherent in transactions carried out in what the author describes as “completely virtual spaces without any territorial or geographic boundary.”

What are cryptocurrencies? Existing categories are of limited help. Cryptocurrencies have characteristics of money or securities, so regulation could borrow from these areas, but their structure varies and they do not fall cleanly into one category or the other. Barsan contests the characterization of cryptocurrency as a legally unidentified object (objet juridique non identifié). Instead the author suggests that we should think of it as having multiple identifications based on the characteristics of the particular cryptocurrency, especially currency-like or security-like tokens.

The author also points out that the characterization of cryptocurrencies depends on what country gets to define them. An example from the article provides a sense of the complexities. Assume you need to determine the law that governs an ICO or cryptocurrency transaction. Absent a choice-of-law clause, the governing law might be that of the consumer’s home state (if investors count as consumers). Or the law of the seller’s state might govern, but only if investors do not count as consumers and tokens are considered “sale of goods.” If no governing law can be determined, the default is the “law of the country where the damage occurs.” But even that default is problematic in these transactions that lack “territorial attachments.” (Where is an investor’s virtual wallet?) Finally, national courts may simply apply mandatory national investor protection rules, regardless of other conflict-of-laws issues. You get the picture. Ultimately, these complications illustrate the need for articles like this one that patiently detail the legal framework.

The complexity of the topic may prompt in the reader an urge for a more literal and simplified map. I provide the chart below both to highlight the author’s contributions and to push the author to think about formats for more simplified reference. (The underlying information is derived from the article, though any mistakes are mine.)

Table: EU Conflict of Jurisdiction Rules

* The author points out the difficulty of establishing directed activity if the white paper is “written in English only, published on an English website” with an extension “like .com or .net” and the currency used was Bitcoin or Ether.

The US SEC Chairman opened a recent statement by pointing to a world “abuzz” about cryptocurrencies and ICOs, adding this novelistic take: “There are tales of fortunes made and dreamed to be made.” In this context—a frenzy of activity, dreams of great fortunes, and fears of bubbles and busts—part of the article’s appeal is its tone of understated pragmatism. It is not normative, nor does it claim to provide a universal solution. Intergalactic financial regulation does not exist, and the article is restrained even in identifying a unified European solution. Its last paragraph concludes that uniformity in Europe might very well be desirable, but ends with this final sentence: the “European legislator is, however, not known for his speed.” Ultimately, the article’s value is not in providing a solution, but rather in mapping the problem and the beginnings of regulatory responses.

Cite as: Verity Winship, Cryptocurrencies, Le Bitcoin, and Regulatory Reach, JOTWELL (March 6, 2018) (reviewing Reviewing Iris M. Barsan, Legal Challenges of Initial Coin Offerings (ICO), 3 Revue Trimestrielle de Droit Financier (RTDF) (2017), available at SSRN), https://intl.jotwell.com/cryptocurrencies-le-bitcoin-regulatory-reach/.

Yes, There is Such a Thing as Too Much Transparency

Ashley Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. St. L.J. 713 (2017).

In a world where secret meetings and resulting agreements seem particularly suspect, it might be tempting to think that the growing norm of transparency might keep the world a more harmonious place. Woodrow Wilson famously extolled the virtues of “open covenants of peace, openly arrived at….” Ashley Deeks, in her recent article, A (Qualified) Defense of Secret Agreements, asks us to think again of this norm and dictum. Her article is one I like a lot, and I hope others active in the study and shaping of international law and international relations do as well.

To be sure, secret agreements, Deeks reminds us, have done much to undermine international stability. The exposure of the Sykes-Picot Agreement—carving the Ottoman Empire into British and French spheres of influence with certain gains for Russia—remains good evidence among many in the Middle East that all past, current, and future interventions by US or European countries are driven by ulterior, territorial motives. Agreements between the Obama administration and regimes not particularly well-known for their strong human rights records have expanded the practice of extrajudicial killing through drones and other technologies. Additional contemporary examples might be the “Trump Tower meeting,” the “secret” US-Israeli agreement to broadly destabilize Iran, a covert agreement giving Russia free hand in Syria.

Yet Deeks also ably illustrates the usefulness and necessity of secrecy for the promotion of partnerships and policies that ultimately make the world safer. Her methodology centers around evaluating secret agreements’ objectives that are either consistent or inconsistent with the United Nations Charter as the U.S. has generally interpreted it. Arms control treaties are facilitated by the ability to disclose numbers and locations. Secret intelligence sharing arrangements are understandably so (and present less of a problem for democratic accountability) because they are built on already legally-sanctioned secrecy/classification laws in participating countries (the Five Eyes agreement among the United States, United Kingdom, Canada, Australia, and New Zealand plays a recurrent, illustrative role).

The most substantial contributions of the article are those of classification and analysis. Deeks identifies five major categories of secret agreements: intelligence cooperation, military cooperation, nuclear weapons issues, conventional-weapons-related use restrictions, and economic commitments. She assesses them for the discomfort they should or should not cause those ultimately concerned about the objectives of international institutions (taking the U.N. Charter as representative) and the necessity for cooperation and coordination in the international competitive states system.

Deeks is forthright about the methodological difficulties her project poses. Secret agreements are difficult to study because they are, well, secret. Yet it is because they are so obscure that Deeks’s contribution is so valuable. Disrupting what she concedes is an understandable stigma, she argues that it is possible to work through the circumstances under which secrecy is consistent with, rather than inconsistent with, democratic objectives and/or international stability. Deeks provides at the very least a hard-nosed effort at doing so with a payoff for scholars and policymakers alike.

Cite as: Sam F. Halabi, Yes, There is Such a Thing as Too Much Transparency, JOTWELL (February 15, 2018) (reviewing Ashley Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. St. L.J. 713 (2017)), https://intl.jotwell.com/yes-thing-much-transparency/.

Muslim China: Regulating Religious Resistance and Cooptation

In late October of 2017, China’s central leader Xi Jinping gave a speech in which he expressed a renewed campaign to “sinicize” religious practice under greater Party control. This call is part of a long history of ambivalence, repression and bureaucratization that has characterized the uneasy practice of religion under China’s formally atheist single-party state. But it is this tactic of bureaucratization that most eludes outside understandings of the regulation of religion in China.

Into this relative void, Matthew Erie’s China and Islam: The Prophet, the Party, and Law presents a model of the contribution that legal ethnography can make to understanding not only the regulation of social life in contemporary China but also to a myriad of critical issues constituting the multi-faceted relationship of Islam to contemporary nation-states. As both a socio-legal and comparative inquiry, Erie’s ethnographic and scholarly investment over the better part of decade has produced a rich empirical account that speaks in a wide range of theoretical and disciplinary registers and offers value for an equally wide range of readers.

The focal point of Erie’s study is the city of Linxia located in the Hui Autonomous Prefecture of central China. Linxia has the distinction of being China’s only majority Muslim city, and has sat at the cross-road of Islamic engagement with China for centuries. Much of China and Islam gives life to the elusive concept of minjian (), which attempts to capture the myriad of informal legal norms and practices Hui citizens produce in iterative negotiations with the formal law of the state. At turns, minjian draws parallels to “civil society” or “customary law.” The lack of precise definition relates the constant and intertwined co-optation and resistance that characterizes Hui relationships to a formally hostile state. Erie shows the inter-relationship between competing concerns about ethics, morality and judgment as the Chinese Communist Party (CCP) attempts to manage Hui life through Muslim intermediaries who are often the products of state-run Islamic schools and employed as public servants. The complexity Erie reveals is one of “mutual access, information sharing, and suspicion.”

The tropes of opposition or assimilation that often define the limited global vocabulary regarding the political possibilities of Islam are shown by Erie to be insufficient for capturing either Hui views of the state or state views of the Hui. The Hui are the only ethnic group defined by religion in China, and the global diversity of Islamic legal practice is represented by their general association with the Sunni Hanafi school as they produce a variety of syncretic interpretations that Hui religious leaders invoke with the authority of formal religious law, or jiaofa ().

Erie pairs his sustained ethnographic engagement with life in Linxia with novel, and perhaps now singular, access to archival materials.1 In each chapter, he provides a historical backdrop for a particular aspect of the life of the law in Linxia. This approach allows Erie to show the contingency of state-society relations, but also the powerful legacy of the past. For example, he places the Bureau of Religious Affairs, one of the many governmental organs tasked with regulating religious practice, in the longer history of Chinese state practice of limited sovereignty granted to minority groups. The CCP’s creation of “autonomous” regions itself reflects this legacy, and explains the relative domination of the state in criminal law but its lighter presence in family law—as evident in the traditional Hui exemption from the one-child policy.

Each chapter of the book then explores the construction of minjian in a particular facet of Hui life. Erie’s background as a comparative property scholar is routinely on display as he grounds the relationships of different Hui and governmental actors in their contests over the ongoing development of Linxia’s public and private spaces. This architectural texture to Erie’s account expands to his discussion of parallel contests of clerical authority over proper ritual observation, a battleground that exhibits the dual demands put on Hui civil servants by a state that seeks to actively reduce heterodoxy.

China and Islam’s fourth chapter is particularly instructive for how the regulation of education is a decisive site for exploring the different priorities of state and civil society actors in Linxia. Traditional state-run schools teach standardized versions of Islamic legal theory and practice, and are now matched by privately funded institutions—many of which seek to improve Arabic fluency, not to improve religious piety but to produce graduates who can serve as effective commercial intermediaries on China’s New Silk Road trade initiative. This chapter also gives great detail to Linxia’s place within transnational Islam, producing new interconnections with the larger world of Islamic practice, alongside disillusionment that foreign Muslims do not match the self-deprecating idealizations popular among some Hui.

Similarly, Erie’s chapter on marriage law gives logistical depth to the triangulated negotiations Hui women engage in with the state and the embedded patriarchy of Linxia’s minjian. The fluidity between Islamic and state courts as strategic forums for divorce litigation will be familiar to scholars of legal pluralism, as will the local specificity of views on bride price that technically violate both traditional Islamic and state law.

Scholars of private law are provided a chapter on the moral economics of Linxia, and its relationship to the burgeoning transnational practices of Islamic banking and finance. Pairing theories of gift giving with the incentive structures produced by tax law, Erie shows how a mutual desire for economic development gives rise to a culture of financial regulation that is “betwixt and between censor and celebration.”

A chapter on dispute resolution draws on the classic preoccupation of legal anthropology with varieties of adjudication as Erie maps the informal consultations that provide the pragmatic sinews of what he calls Linxia’s “matrix of interests and sources of law.” The notable character Old Dong, an illiterate but highly respected mediator, illuminates a system where formal law is dependent on social relationships but also renders legal decision-making often opaque to local citizens. China and Islam does not present any simple reifications of any of the actors analyzed, clearly showing how minjian can at turns be as oppressive as the state.

Erie achieves this remarkable act of mapping the reality of legal practice in Linxia while also recurrently placing it within the highly politicized discourse on Islam, as active within China as it is in many liberal nation-states. Erie is steadfast that the Islamic faith of the Hui does not produce irreconcilable antagonisms, but informs the pragmatic problem solving that always lies at the intersection of informal and formal law. That the Hui increasingly distance themselves from Uyghur Muslims both reflects the complexity of Hui identity within China and their inescapable embeddedness in what Erie calls the “global currents of fear” eagerly redeployed by the CCP. And it should be noted that much of the book was produced in a process that required very real risks by its informants.

There is also a trenchant challenge to many liberal critics of Islam never far from the surface of the book. The CCP engagement with the Hui actively questions presumptions about what authoritarianism means in China, and the political institutions in which Islam can thrive. But more so it provokes the thought that if the Chinese Communist Party can embrace the very same tropes of “terrorism” or “radical Islam” in service of its own interests that are used to justify the repression of Islam in democratic regimes, then this mirror image is truly an ugly one.

If there is any limitation to China and Islam, it is that few readers will likely posses all the fluencies required to delve fully into each aspect of Hui life Erie explores. The linguistic achievement of the book is no small feat in itself, drawing on data derived from sources and scholars working in Mandarin, English, Arabic, Persian and local dialects. It makes use of an immense gamut of social theory throughout, and readers would be well served to engage first with those parts of the book that speak most directly to their interests. Though for anyone interested in how law operates in China, especially outside of its eastern urban corridors, China and Islam is simply a must read.

  1. There are a host of new concerns about renewed restrictions on ethnographic and archival sources for researchers in China. []
Cite as: Jedidiah Kroncke, Muslim China: Regulating Religious Resistance and Cooptation, JOTWELL (February 5, 2018) (reviewing Matthew Erie, China and Islam: The Prophet, the Party, and Law (2016)), https://intl.jotwell.com/muslim-china-regulating-religious-resistance-cooptation/.

A Newly Progressive Political Economy?

Sabeel Rahman, Democracy Against Domination (2016).

In Democracy Against Domination, Sabeel Rahman has written a book for our time: a serious intellectual effort to grapple with the problems posed by rising economic inequality and concentration of power, and the role of democratic ideas and processes in responding to these challenges. The book is wonderfully written, impressively broad as well as deep, and offers an original and interesting thesis—the idea that the concentration of economic power in the hands of a powerful few poses an existential threat to individual freedom, and that the solution to this problem lies not in elite-driven forms of “managerial government,” but rather in individual freedom itself. He argues, in other words, that the response to this increasing form of economic domination should be a call for new forms of economic policy and regulation driven and shaped by a highly popular, participatory form of democratic government which calls on the power of “the liberty of the ancients” (compare Stephen Breyer’s Active Liberty).

This puts the book firmly in the genre of what Jeremy Waldron has called, and Rahman himself labels, “political political theory.” Rahman links this theoretical or philosophical argument with a richly historical account of the role of populist movements responding to the “First Gilded Age” in the 1920 and 30s. He thus connects his call for a new form of progressive populism—or popular challenge to corporate power and privilege—to deep historical roots. In this way, his book is similar to another excellent recent book on a related topic, The Crisis of the Middle-Class Constitution (2017), by Ganesh Sitaraman. Together, one might in fact argue that Rahman, Sitaraman and others are contributing to developing a new—or at least renewed—form of historical-political political theory.

The book was on the top of my reading list in part because, like Rahman (and Sitaraman), I have been spending a significant amount of my time in recent months thinking about the challenge of rising economic inequality, and what it means for democracy and public law. Like other leading current progressive intellectuals, Rahman is right to point to the importance of corporate power as a threat to individual freedom, as well as individual equality. And I share Rahman’s view that we need to be attentive to the connection between economic power and democracy: economic inequality tends to undermine political equality and thus also democracy, and yet democratic processes are critical to our ability to combat the creation and misuse of certain kinds of market power. Looking outside elite-driven processes of democratic control and regulation thus seems one promising way to break this vicious circle. Rahman, in turn, points to this—and a concern to help build popular support for and trust in government intervention in the economy—as a key virtue to popular modes of democratic government in the economic sphere.

Unlike Rahman and Sitaraman, however, I am ultimately a ‘Chicago egalitarian’ (my first academic position was at the University of Chicago Law School). This means that I think I have more ingoing sympathy than he does for the role of managerial expertise, and markets, in responding to the problems he identifies. This also left me wanting to emphasize certain qualifications to the argument, as well as to ask several questions as I read the book … by happenstance on a recent flight from Chicago.

First, it seems important to emphasize that Rahman does not mean wholly to displace what he calls “managerial”—i.e. elite, evidence-driven—responses to today’s economic problems. Instead, he envisages a form of productive engagement between experts and democrats, which can motivate and push elite processes to respond to the problems of economic domination and inequality—but still retain many of the benefits of expertise and evidence-based policy. Thus, in chapter 6, he proposes a move toward more “structuralist” modes of regulation that do a better job than current practices of balancing normative, democratic, and expert elements. And similarly, chapter 7 talks about administrative procedural structures that could better balance these elements, for example by using participation in regulation alongside expertise, as Rahman suggests the Consumer Financial Protection Bureau did for much of its early operation. This may seem a quite obvious point to many readers, but in an age in which facts and expertise are increasingly being attacked by the populist right, for quite different reasons, it seems important to make this point clear.

Second, what is the scope in Rahman’s account for “managerial” government in times of crisis? Rahman averts to this issue in the introduction to the book but leaves its resolution for another day. But it seems one of the key areas where further debate is warranted, based on the intellectual structure and catalyst Rahman’s own account provides: Crisis, of course, is a potentially elastic and malleable category, and Rahman would surely not want a crisis-based exception to swallow his entire emphasis on democratically mediated and participatory approaches to economic governance. But—conceptually at least—there are also certain economic problems that call for an extremely rapid response to be effective. Think about the response of the Fed and US Treasury to the 2008 financial crisis: a delayed response to saving Lehman would have had no effect. Delaying fiscal stimulus or monetary measures designed to rally the economy would have meant that such interventions, when they did happen, were far less effective. Indeed, one of the key predictors of the success of stimulus in response to the 2008 crisis was the scale and timing of the response: economies that spent too little, too late, are still effectively in recession.https://wordpress.org/plugins/redirection/1 When Rahman points to the expansion of the technocratic capacity of the Fed as a problematic response to the crisis, I therefore wondered whether he might have done more to talk about the issue of timing – is this a problematic response if it is designed to increase the capacity of institutions to true crises, rather than ongoing economic management?

Third, and perhaps most important, when Rahman talks about “economic domination” does he have any limiting principle or case in mind? Clearly Rahman is right to go beyond contexts in which firms enjoy monopoly power in the product market when thinking about economic domination. Even competitive firms may have significant market power in the labor market, which thus gives them broad power to engage in ‘domination’—or what Rahman defines as the arbitrary interference with workers’ freedom. (P. 66.) But does this mean that all people employed subject to domination by their employers (including law professors, for example)? Does it matter how much human capital they have, or whether they are working in a competitive labor market?

Part of the answer may ultimately lie in whether, when he talks about “domination”, Rahman’s target is ultimately inequality, unfreedom, or a lack of basic human dignity: the three concepts are, of course, deeply interconnected but also distinct.2 If it is truly inequality we are concerned about, for example, domination will occur in almost all situations in which the marginal product of capital is higher than the marginal product of labor. In this context, domination may be less severe for high-skilled workers compared to low-skilled workers. But all workers will experience some degree of domination. (This was in fact the argument of many early 20th century economic progressives, whose thought Rahman so lucidly excavates.) The returns to capital have steadily increased, relative to returns to labor, during the 20th century,3, and thus it will be capital rather than labor that has the upper hand in modern employment negotiations.

If domination, in contrast, is a problem of arbitrary interference with individual freedom, not all workers are likely to experience this kind of interference: in a competitive labor market, employers who impose limits on worker freedom must pay a price for that interference. If they fail to compensate workers, many workers will simply leave and go to work for another employer. This also creates disincentives for employers to impose arbitrary limits on worker freedom—i.e. limits with no real value to the employer, or with benefits far outweighed by the costs to workers. For firms, only limits that have real economic value are worth paying for, and thus only those kinds of limits will be adopted in a competitive labor market. The same is simply not true, however, where the labor market is not fully competitive: firms can impose costs on workers in this kind of market, without being required to pay for it, and thus all workers will be susceptible to domination of this kind. This might also be one way of connecting the idea of domination to the longstanding emphasis of progressive economic thinkers on anti-trust law. But as Rahman notes in chapter 3, progressive-era thinkers also took a much broader view of the kinds of “structuralist” interventions that could be legitimate and appropriate as a means of combatting economic domination: they also emphasized the role of public utilities (or “stringent public oversight, requiring fair pricing and equal access” for firms producing social necessities (P. 119)), and forms of corporate governance that maintained a meaningful separation between corporate ownership and control.

Finally, domination could be understood in terms that combine a focus on autonomy and dignity. For many workers, for example, the imperatives of survival necessarily require that they engage in market labor. When individuals are working against a backdrop of economic coercion of this kind4, we might also take a much broader view of what counts as an arbitrary or unreasonable interference with their autonomy: any limit that undermines the capacity of individuals to enjoy full human dignity, or the capabilities identified by scholars such as

Martha Nussbaum and Amartya Sen (e.g. rest, play, privacy, emotional wellbeing, and control over their physical environment) would likely count as domination in this context. Rahman himself does not refer to the idea of human dignity, or capabilities approach, but he clearly has strong sympathies for it: the thick conception of agency and freedom he constructs from the ideas of Dewey and Brandeis, and then again in the closing section of chapter 8 on “Democratic Freedom,” has strong resonances with this kind of understanding. An understanding of this kind would also suggest that domination is extremely broad, but not universal, in the modern era: it occurs wherever employers impose limits on workers who are not wealthy, and those limits have the capacity to impinge on fundamental human dignity in the sense defined by scholars such as Nussbaum and Sen.

How one answers this question may also have some relevance for what we think the respective roles of different institutions are in responding to the problem: the great value of Democracy against Domination in this context, however, is that it causes us to look at these questions anew.

Rahman proposes both the creation of a new set of regulatory bodies capable of making the structuralist interventions we so urgently need today to address the 21st century version of economic domination and the kind of bottom-up democratic politics capable of generating and sustaining support for this kind of intervention. It is, in this sense, a work of both great pragmatism, as well as principle, and an important intellectual leap: in ways not seen since the progressive era, it helps bridge the gap between economic and democratic theory to propose a new—and exciting—form of (small and capital D) “democratic economics.”

  1. See e.g. Christina Romer and David Romer, What Ends Recessions?, 9 NBER Macroeconomics Annual 13 (1994). []
  2. See, e.g., John Rawls, Political Liberalism (1993). []
  3. See, e.g., Thomas Piketty, Capital in the Twenty-First Century (2013). []
  4. compare Robert L Hale, Coercion and Distribution in a Supposedly Non-coercive State, 38 Political Science Quarterly 470 (1923). []
Cite as: Rosalind Dixon, A Newly Progressive Political Economy?, JOTWELL (January 12, 2018) (reviewing Sabeel Rahman, Democracy Against Domination (2016)), https://intl.jotwell.com/newly-progressive-political-economy/.

Can Certification Marks Promote Health Related Goals?

Margaret Chon and Maria Therese Fujiye, Leveraging Certification Marks for Public Health, in The New Intellectual Property of Health 257 (Alberto Alemanno and Enrico Bonadio eds, 2016), available at SSRN.

In the past months, there have been several interesting new books published on international and comparative intellectual property (IP). One of the books that has interested me the most is The New Intellectual Property of Health (Alberto Alemanno and Enrico Bonadio eds, 2016). This book tackles a series of important topics which relate to a variety of intersections between IP and public health. Its various chapters include topics related to plain packaging, investor-state dispute provisions, and the controversial notion of IP as investment. As an author of one of the chapters in the book, I am not providing a review of the book itself, but I would like to commend your attention to the chapter written by Margaret Chon and Maria Therese Fujiye, Leveraging Certification Marks for Public Health. In this chapter, the authors focus on the possibility and the capacity of certification marks (marks that certify that products are made or embody a certain standard) to achieve health-related objectives by promoting healthy products. In particular, the authors analyse the role that certification marks play as carrier of certified information about the products and consider whether this information could be leveraged for health-related goals, by leading consumers to purchase specific products that could be considered “healthier” than others available in the market.

Leveraging Certification Marks for Public Health provides crucial and important guidance to scholars, who are engaged in the exercise of attempting to link distinctive signs (such as marks and geographical indications (GIs)) with public health (or other meritorious objectives). In my own chapter, I conclude that GIs do not necessarily promote the consumption of healthier products, although they can certainly increase the quantity and quality of information related to the products they identify. (GIs are often used to identify products which, when consumed beyond moderate quantities, can be quite harmful to health—such as wines, spirits, cheeses, and cured meats.) Chon and Fujiye, however, explore whether certification marks can be used as complementary, if not as alternative, to products’ mandatory disclosure and labelling requirements since these marks provide precise information to consumers related to the quality and other characteristics of the products.

The authors analyse some of the less explored channels of product regulation and quality control that relate to the governance of trademark law and products’ supply chain from inception to market, and observe how a system of Global Value Networks (GVNs) can be used to provide “smart” information to consumers through certification marks nationally and across multiple jurisdictions. In turn, if a system of GVNs can be used to promote smart information for products in general, it could then be leveraged to promote healthy products and health-related goals. In the chapter, the authors focus primarily on examples related to food, an area that has seen increasing attention in recent years, also due to several scandals, such as the sale of adulterated olive oil, fake eggs, and similar schemes.

Yet, while pointing out the promising effects of certification marks, the chapter also highlights the problems related to the current governance structure of certification marks, which includes to what extent consumers properly understand the information encapsulated in the certification marks, or whether this information can have a (positive) impact on consumer purchasing behaviours as a result. Moreover, as noted also by other scholars, most recently by Jeanne Fromer, The Unregulated Certification Mark(et), the chapter stresses the possible imperfection of the certification trademark system, in particular the lack of full transparency on certification standards and effective quality control of the products.

In particular, it is still not possible to fully rely on certification marks (nor on GIs) for a full disclosure of product ingredients, manufacturing steps, and even actual geographical origin of the products in their entirety. To the contrary, as in the example of the “organic” case study in the chapter, certification marks are at times based on unclear standards. Hence, they have become powerful marketing tools—consumers believe organic products are better and are willing to pay a premium price for them, even though the parameters for organic certification does not necessarily reflect much healthier regulations, and certainly the label “organic” do not always identify healthy food.

Still, unlike other scholars who have criticized certification marks as being subsidies and barriers to entry, while failing to be transparent or effective to promote the information that they are supposed to convey, Chon and Fujive conclude the chapter by emphasizing the potentials of these signs, when correctly leveraged, to promote health-related and other positive objectives. I fully agree with this position. More specifically, the answer to the fact that certification marks (as well as GIs) are today still imperfect tools to carry smart information as part as GVNs in the global supply chain does not makes these tools less valuable (and certainly these are no more subsidies or barriers to entry than other types of IP are). Instead, we should strive to perfect these tools, and make them more transparent and reliable for consumers. Again, this may not translate to consumers purchasing healthier food, but it can certainly translate to consumers having a larger set of accurate information about products in the market place—and I like that a lot.


Editor’s note: Professor Calboli contributed a chapter to The New Intellectual Property of Health, but was involved with neither the selection or editing of the chapter she discusses here.

Cite as: Irene Calboli, Can Certification Marks Promote Health Related Goals?, JOTWELL (November 3, 2017) (reviewing Margaret Chon and Maria Therese Fujiye, Leveraging Certification Marks for Public Health, in The New Intellectual Property of Health 257 (Alberto Alemanno and Enrico Bonadio eds, 2016), available at SSRN), https://intl.jotwell.com/can-certification-marks-promote-health-related-goals/.

A Blueprint for the Global Microbial Commons

Legal battlegrounds have moved into the genetic realm. From genetically modified seeds to the altered gene sequence for strawberries, to the patent disputes over isolated DNA sequences and data mining of genetic information, and the associated data generated from germplasm. The Supreme Court rejected a farmer’s claim against Monsanto to the right of reusing genetically modified seeds in 2013. Former employees are in a dispute with UC-Davis over the altered gene sequence for strawberries. Gene editing technologies are subject to patents of contested ownership, but soon may be more readily available. Myriad loses some of its patent rights related to the BRCA1 gene and actively now seeks patents in data mining of genetic information. Data, genes, and law are in a predictable but perplexing confluence.

Professor Jerome Reichman is at the forefront of scholarship on this confluence with the publication of “Governing Digitally Integrated Genetic Resources, Data, and Literature: Global Intellectual Property Strategies for a Redesigned Microbial Research Commons,” coauthored with Dr. Paul F. Uhlir of the National Academy of Sciences and Professor Tom Dedeurwaerdere. A humble jot cannot do justice to a 650-page tome, but as far as Things We Like Lots, this book is up there. It should be on the shelf of scholars and policymakers dedicated to genetic research and its legal regulation.

What is most appealing to me is the mix of law, fact, and policy. The authors identify a set of problems, engage with the relevant legal frameworks, and address several overarching policy challenges. Ever since the Supreme Court recognized the patentability of genetically altered organisms in 1980, patentable subject matter has expanded to include genetic materials broadly: gene sequences, methods of medical diagnoses, therapeutic techniques, and genetic testing. Gene patenting has made its mark on a range of practices from university research to medical practice. Congress has been largely inactive in regulating gene patenting although it has addressed some of the potential excesses through food and drug regulation, specifically in the domain of biologics. Courts, on the other hand, have addressed genetic patenting through numerous rulings raising the standard for patentability and proving infringement. These developments have been fruitful in shaping a policy of genetic patenting. But as Reichman and his coauthors show, these efforts are inadequate for two reasons.

First, judicial opinions and legislation are limited to the United States. They may serve as models for other jurisdictions, but they have little impact beyond that. A key problem is the sharing of genetic information across borders. Genetic research is an international phenomenon. Markets for gene therapies and diagnostics are global. A regulatory regime such as a commons has to function transnationally, and this requires treaties and international institutions. Some may argue that the World Trade Organization and the TRIPS Agreement are the desired institutions. But as these authors, as well as myriad other scholars, would point out, TRIPS is too protective of patents and leaves little room for variance across nation states. The Nagoya Protocol, however, provides a more appropriate framework for creating a global commons for genetic research and the sharing of data. Although developed in the context of plant biodiversity and agriculture, the Nagoya Protocol allows reuse of patented materials (for example through the protection of breeders and farmers using seeds), which is a rights regime that allows for sharing of other materials, such as germplasm or gene sequences.

Second, genetic research has changed significantly over the past decade. Initially, researchers were in the fields of biology and chemistry. Genes were chemicals; germplasms, organic matter. With advancements in computer and information technologies, gene research met big data with the laptop replacing the wet lab as the tool for research. Genomics, proteomics, and gene science involve the digitization of organic matter and chemicals. Matter as data allows for deeper analysis, identification of patterns, testing of alterations and mutations for designing more targeted diagnostics, therapies, and pharmaceuticals. The law is only now catching up with this transformation. While there is a jurisprudence on the intellectual property of genetic technologies and one on information and communications technology, scholars are only now examining in depth the merging of these two currents. How do the rules and policies combine especially when the pharma field has often supported protective patent rights and the software field has supported fewer rights. The intersection of genes and data creates a whole new field and new legal regime.

Reichman and his coauthors lay the foundation for this new regime. The book is divided into four parts. The first deals with the international regulation of genetic resources and the assault on scientific research. The second turns to the preservation of the public research function of genetic research after the Nagoya Protocol. The third considers the digitally integrated infrastructure for microbial data and information. Finally, the fourth presents a blueprint for a redesigned microbial research commons.

Two conceptual points stand out from this book; one is about rights, the other is about transactions. The creation of a microbial research commons demands a set of rigid intellectual property rights, which do not create barriers to those who want to use data for their own research purposes. This requires recognizing user protections under both patent and copyright laws. Genetic resources, whether in organic or data form, should be open to the public as naturally occurring substances. Genetic resources that have undergone inventive transformation may get some patent protection, but only enough to provide adequate rewards for the invention. Follow-on use and invention should not be foreclosed. Furthermore, in digital form, genetic resources are data and their arrangement, a database. Copyright law gives no protection to data and thin protection to databases. With digitized genetic materials, copyright and patent protection may exacerbate the problem of access by users. Limitations within these two areas of law, the authors note, should support the research commons as knowledge of gene sequences and their digitization should require more limited intellectual property rights.

Such a system of rights would facilitate the transfer and distribution of genetic materials in its varied forms. Whether as germplasm or as data, researchers, inventors, and users should have access to this information. Those who discover the genetic knowledge and those who transform it into databases, therapies, and diagnostics should not preclude others. Fair use, liability rules for infringement, and other protections will support the commons and the resulting communication and collaboration among research communities. Reichman and his coauthors present a detailed account of the path to the commons and what this ideal could look like in practice.

This book draws on the prior scholarship of the three co-authors. But the synthesis brings together these ideas in a fresh, coherent whole. Researchers, practitioners, and policymakers should read this book. Those interested in where the future of genetic research and big data lies will learn much from this well-written, if hefty, volume. Professor Reichman and his coauthors have opened up a new field for scholars to pursue and contribute to the knowledge commons.

Cite as: Shubha Ghosh, A Blueprint for the Global Microbial Commons, JOTWELL (September 29, 2017) (reviewing Jerome Reichman, Paul F. Uhlir, and Tom Dedeurwaerdere, Governing Digitally Integrated Genetic Resources, Data, and Literature: Global Intellectual Property Strategies for a Redesigned Microbial Research Commons (2016)), https://intl.jotwell.com/a-blueprint-for-the-global-microbial-commons/.

Buddhism, Law and Comparative Law: the (Rebecca) French Connection 

Rebecca R. French, What is Buddhist Law? Opening Ideas, 64 Buffalo L. Rev. 833 (2015), available at SSRN.

Professor Rebecca Redwood French’s What is Buddhist Law? Opening Ideas is a major contribution to the nascent field of Buddhist legal studies and has the potential to advance our thinking about comparative law. In this review, I will highlight the article’s significance to these two areas of study.

Professor French notes that although there is significant writing on the legal dimensions of the Christian, Jewish, Islamic and Hindu religious traditions, little has been written on “legal concepts in the Buddhist tradition.” (P. 834.) Perhaps most significantly for readers of this blog, she points out that although some Buddhism scholars have written on “the Buddhist Law Code … very few have written on it from a legal vantage point.” (P. 834, note 3.) As the author of several important works in the field (including, On Buddhism and Natural Law  8 J. Comp. L. 141 (2013-2014)), as co-editor (with Professor Mark A. Nathan) of the collection entitled Buddhism and Law: An Introduction (2014) and as editor of the journal Buddhism, Law and Society, Professor French has done much to fill this gap.

The introductory chapter to Buddhism and Law: An Introduction provides a terminological distinction that can help orient our discussion. There, Professors French and Nathan contrast “Buddhist Law,” which refers to “monastic law codes,” with “Buddhism and Law,” which “alludes to the secular legal systems of countries that are Buddhist.” (Buddhism and Law, P. 4.) In this review, I subsume within the capacious term “Buddhist legal studies” legal academic writing on monastic legal codes and on the interactions between Buddhism and secular legal systems.

Professor French begins her article by setting out several reasons for developing this field of study. Consider first the reasons for better understanding Buddhist Law. According to Professor French, Buddhism has a detailed legal code and a long legal history that can be traced back to the founder (P. 835), and research by jurists can illuminate this aspect of the tradition. It is also important to study this legal code, Professor French argues, because the concept of law in Buddhism challenges the dominant modern understanding of law. According to her, the Buddhist concept does not focus on artifacts of positive law (“cases, rules, rights, judicial procedures, decisions and sanctions” (P. 835)). Instead, writes Professor French, the concept of law in Buddhism is “uniquely focused on the socialization of the individual to a set of rules that will help him or her operate within a community.” (P. 835.) This process of socialization affects the Buddhist practitioner’s day-to-day behavior, reduces conflict, diminishes the need for legal rules, and facilitates the pursuit of religious practices (meditation) and goals (enlightenment). (Pp. 835-36.)

Professor French adds to these arguments in favor of studying Buddhist Law several that justify scholarly attention to Buddhism and Law. She contends that scholarship on Buddhist cultures has largely ignored the legal texts of the relevant political states. This body of academic writing (which includes Buddhist Studies and Area Studies) has therefore neglected the influence of Buddhism on “the political and legal operations of these states.” (P. 838.) Professor French identifies pragmatic reasons for understanding this influence. She notes that many countries with significant Buddhist populations loom large in international relations and in the commercial and political interests of the United States. (P. 836.) There is, therefore, a strategic interest in understanding how Buddhism shapes the political and legal life of these states.

After identifying these reasons for undertaking Buddhist legal studies, Professor French undertakes a magisterial survey of relevant topics. In Part I of the article, she identifies the origins (Pp. 841-842) and objectives (Pp. 842-845) of Buddhist monastic codes, before distinguishing the relevant concept of Buddhist law from an overbroad definition advanced in the field of Buddhist Studies. The latter definition captures the whole of the Buddha’s teaching, including that which relates to “the nature of the universe, the position of human beings in it, reality, karma, nirvana and all of the other basic ideas of Buddhist philosophy.” (P. 845.) In Part II, Professor French identifies the number and types of Buddhist legal codes, and examines their organization and style. In Part III, she demonstrates that the legal codes do not exhaust the content of legal materials in the Buddhist canon. Professor French demonstrates that the Buddha’s observations on law can be found in “a wide variety of texts, proverbs, stories, sayings and homilies” (P. 866), and that other texts, including temple ordinances, royal proclamations and commentaries on the Buddhist canon also include discussions of legal norms. The article concludes with an overview of Buddhist Law and Buddhism and Law in South and Southeast Asia, East Asia, and North Asia and the Himalayan region.

It follows from the above discussion that Professor French’s article will be a cornerstone in the field of Buddhist legal studies, and is worthy of attention for that reason alone. The article is also important, in my view, because it advances the field of comparative law in three important ways. First, comparative scholarship on legal systems in Buddhist societies is necessarily incomplete if authors do not understand how Buddhism shapes those systems. Professor French’s survey of Buddhism and Law offers promising avenues for examining this influence.

Second, comparative law’s neglect of Buddhist legal codes results, in part, from a tendency in the legal traditions literature to caricature Buddhism. Professor French sees this tendency in the work of my esteemed late colleague, Patrick Glenn. According to Professor Glenn, Buddhism spread “in a non-political, non-institutional way, just telling people about the way of the world and achieving some kind of political consensus only in Tibet.” (P. 849, internal citations omitted.) Professor French’s article is an excellent corrective and a starting point for a more fruitful engagement with the Buddhist legal tradition.

Third, Professor French’s article has the potential to spark productive dialogues among comparative law scholars with a jurisprudential bent. As we have seen above, the concept of law in Buddhism contrasts with, and therefore contests, much of the modern positivist understanding of law. A similar challenge has been posed by some writers on Indigenous legal systems in Canada and elsewhere (see, e.g. John Borrows’ Freedom and Indigenous Constitutionalism). Indeed, in a wide range of contexts scholars are examining practices and concepts of law that do not rely upon the imprimatur of the state for their legitimacy or efficacy. As part of this flourishing body of scholarship, one can foresee productive comparative conversations between Indigenous law scholars and authors building on the firm foundations established by “What is Buddhist Law? Opening Ideas.” I, for one, intend to seek out such exchanges with enthusiasm and I anticipate drawing upon the abundant riches of Professor French’s article for years to come.

Cite as: Hoi Kong, Buddhism, Law and Comparative Law: the (Rebecca) French Connection , JOTWELL (September 6, 2017) (reviewing Rebecca R. French, What is Buddhist Law? Opening Ideas, 64 Buffalo L. Rev. 833 (2015), available at SSRN), https://intl.jotwell.com/buddhism-law-and-comparative-law-the-rebecca-french-connection/.

Private No More: Exposing the Praxis of Comparative Law for What It Is

I liked Privacy Revisited, not the least because Ronald Krotoszynski’s book – both explicitly and implicitly – lays bare and grapples with comparative law’s thorniest methodological problems. It is inspiring to see a colleague struggling so honestly and openly with these issues.

This might sound like curious praise. After all, this is a book about privacy law in a variety of jurisdictions and I have not said that what I most appreciate about Privacy Revisited is its masterful treatment of that confounding subject.  The reason for this is that Krotoszynski’s sweeping survey of privacy law in the United States, Canada, South Africa, the United Kingdom, and the European Court of Human Rights is as knotty as the subject itself.

For example, Krotoszynski chooses to largely frame the concept of privacy through its intersection with free speech rights – and not on independent theoretical terms. Privacy’s intersection with other liberties is an important facet of any broad engagement with privacy rights. And Krotoszynski’s book largely convinces me that the privacy-free speech constellation is a more-or-less universal problem for privacy law. (P. 183-84.) But the weight Krotoszynski gives this particular conflict expresses, at the book’s foundation, distinctly American values and priorities when it comes to thinking about privacy. Yet, Krotoszynski mostly requires the privacy regimes of the other jurisdictions in his study to portray their distinct approaches to privacy through that particular lens. What is more, Krotoszynski’s heightened interest in the conflict between privacy and freedom of speech – a conflict he ultimately resolves by fashioning the two liberty interests as the twin pillars of effective and just contemporary democracies – places him at some distance from the privacy concerns relevant to today’s IT-saturated, big-data age. (P. 181-83) I have argued1 that privacy advocates are ever-less concerned with the harmful publication of private information (and the resulting conflict with free speech rights) but are instead increasingly convinced that privacy interests are implicated merely when the state or private firms collect deeply revealing information about us – even in the absence of evidence that they have used that information to our detriment. Wholly independent of its use in a protected speech act (thereby setting up the clash that preoccupies Krotoszynski), privacy has shifted towards the concerns often associated with the “chilling effect” that results from the mere collection of personally-identifying information. In this paradigm privacy takes the form of protecting us from the collection of our personally-identifying information in the first place – not matter the use to which it is ultimately put. Are privacy rights and speech rights decoupling in ways that Krotoszynski’s study doesn’t consider?

The book’s emphasis on secretum sermonem cum nonetheless produces a rich but eclectic treatment of privacy law across five jurisdictions. The chapter on the United States treats quite a lot of the Supreme Court’s First Amendment cases with only passing references to the Fourth Amendment and Substantive Due Process. The chapter on Canada fuses privacy and human dignity into a single concept. The relationship – theoretical and practical – between these distinct bases for expressing human liberty is not fully resolved. This viewpoint carries over to the chapter on South Africa in which Krotoszynski mostly substitutes the Constitutional Court’s jurisprudence dealing with “dignity, equality, and freedom” for its more specific privacy jurisprudence. The chapter on the United Kingdom is an immensely insightful treatment of the nature of judicial power in English law, a survey made necessary by the apparent dearth of English privacy law, which the judiciary has been loath to champion. The chapter on the privacy jurisprudence of the European Court of Human Rights serves primarily as a vehicle for pointing out a surprising degree of consensus between the United States and Europe on the issue of privacy. This is the book’s most systematic and convincingly delivered chapter, but is it a direct critique of James Q. Whitman’s celebrated divergence thesis? Krotoszynski does not say.

The book’s diversified consideration of privacy leads me to what I view to be its greatest merit. I loved the book because it is such a smart and dynamic engagement with comparative law’s current malaise.2

It turns out that it is really hard to get a socio-legal construct – such as privacy – to hew coherently to a single conceptual framework when working across a number of different jurisdictions and societies. As I have written elsewhere: “There is no privacy. There are only privacies.”3 Krotoszynski agrees:

[W]e should reject totalizing and universalist ‘institutionist’ claims about privacy as both a legal and cultural phenomenon. Privacy law differs among and between legal systems because privacy, perhaps more so than most areas of law, invariable reflect very local cultural understandings, traditions, and beliefs. (P.183-84.)

And with that problem exposed, Krotoszynski thrusts us directly into one of the discipline’s most stubborn questions. Should comparatists pursue deep analyses of the law in its context in relatively few jurisdictions? Or should we fly above the clouds with the functionalists? Krotoszynski wants to know. He agonizes over this damnable choice. And heroically (or is it desperation) he does both.

On one hand, he tells us that the different terminology about privacy used in different jurisdictions “reflects deep socio-jurisprudential commitments, not mere accidents of legal drafting” and that the concept of privacy “retains tremendous cultural, legal, and political salience.” (P. 11.) In recognition of this fact Krotoszynski devotes the opening sections of each chapter to an admirable consideration of some facet of the context of privacy rights in each jurisdiction. It is a revelation, for example, that he urged us to see that privacy rights in the United States are conditioned by a “general distrust of government and government institutions.” (P. 22-29.) It is equally illuminating that he urged us to understand that privacy rights in South Africa are conditioned by the post-Apartheid system’s desire to “differentiate South Africa’s exclusionary past from its inclusive present (and, hopefully, future).” (P. 111.) And it is productively insightful that he urged us to see that the absence of a general privacy right in the United Kingdom is a product of English legal culture and the distinctly “limited sphere for judicial policymaking” it tolerates. (P. 135.) There is this and much, much more of what comparative lawyers call “contextualism” in Krotoszynski’s book.

On the other hand, he does not turn away from the functionalist ambition of using his comparative law survey to point toward a “comprehensive and effective transnational understanding of privacy.” (P. 3.) Krotoszynski claims to see striking transnational “consistency” if not the open pursuit of “convergence” in the Supreme Court of Canada’s privacy jurisprudence, which seems to “borrow freely” from German and European Human Rights law. (P. 70.) True to functionalist form, Krotoszynski argues that the convergence of global markets and increased international interaction will facilitate and, ultimately, require the emergence of a transnational consensus concerning privacy.

I genuinely admire Krotoszynski for this effort. In this wide-ranging work we see the challenges, shortcomings, and promise of these competing approaches to comparative law. Who among us hasn’t struggled with this, the comparatist’s fundamental dilemma? Too few of us are willing to live that struggle so openly and honestly as Krotoszynski. He has given us a compelling invitation to keep hammering away at that methodological and theoretical problem. Whatever we might mean by privacy, Krotoszynski isn’t going to let us mask our disciplinary challenges. I like that. I like that a lot.

  1. Russell A. Miller, A Pantomime of Privacy: Terror and Investigative Powers in German Constitutional Law, Wash. & Lee Pub. Legal Research Paper Series No. 2017-5 (2017), available at SSRN). []
  2. Mathias M. Siems, The End of Comparative Law, 2 Journal of Comparative Law 133 (2007). []
  3. Russell A. Miller, Introduction – Privacy and Power: A Transatlantic Dialogue in the Shadow of the NSA-Affair, in Privacy and Power 1, 4 (Russell A. Miller ed., 2016). []
Cite as: Russell Miller, Private No More: Exposing the Praxis of Comparative Law for What It Is, JOTWELL (July 21, 2017) (reviewing Ronald J. Krotoszynski, Jr., Privacy Revisited: A Global Perspective on the Right to Be Left Alone (2016)), https://intl.jotwell.com/private-no-more-exposing-the-praxis-of-comparative-law-for-what-it-is/.