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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/.

Developing a Matrix for Intellectual Property as Subject of International Law

Intellectual property disputes implicating diverse and seemingly unrelated international legal regimes have become more frequent, acrimonious, and high-stakes. This trend has spawned an enormous academic literature endeavoring to rationalize the approach various interpretive authorities take to intellectual property disputes. Graeme Austin and Larry Helfer’s Human Rights and Intellectual Property offered a framework by which to resolve claims for or against intellectual property protection based on human rights arguments; Susy Frankel has extensively assessed the application of customary international rules of interpretation in furtherance of a rationalizing approach to complex IP conflicts; and Jerry Reichman, Paul Uhlir, and Tom Dedeurwaerdere have developed comprehensive approaches to questions arising at the intersection of international research efforts and potential IP-related obstacles. Edited volumes by Margo Bagley and Ruth OkedijiCarlos Correa and Xuan LiDaniel GervaisShubha Ghosh and Robin Paul MalloyChristopher May and Susan Sell, and Peter Yu similarly provide useful and targeted analyses of discrete IP-areas (e.g. patent and copyright) to particular contexts (e.g. development, disability, and innovation). The aforementioned works are by no means exhaustive but it is fair to say that none attempts to undertake the quite complex, more comprehensive question of intellectual property law as a fragmented part of the broader international legal order.

Enter Henning Grosse Ruse-Khan’s The Protection of Intellectual Property in International Law. Ruse-Khan, University Lecturer and Fellow at King’s College, Cambridge applies the broader theoretical elaboration of international law’s fragmentation to intellectual property disputes so as to provide a more comprehensive approach to issues raised by intellectual property’s overlap with discordant international legal regimes other scholars have tackled through narrower lenses. (P. 4.) This book is one I like a lot, and I hope others active in the study and shaping of international intellectual property law do as well. Intellectual property, Ruse-Khan reminds us, was a forerunner of the kind of fragmentation more systematically analyzed by the International Law Commission after 2006: “IP is . . . addressed, from diverse perspec­tives, in the United Nations Organization for Education, Science and Culture and the Food and Agriculture Organization of the United Nations as well as in the context of the Convention on Biological Diversity and the World Health Organization” even before trade and investment started playing their inevitably influential role. (P. 8.)

Ruse-Khan’s book is particularly timely in light of a recent spate of international intellectual property disputes. Last year, an arbitration panel issued a decision rejecting Philip Morris International’s claim against Uruguay for adopting tobacco packaging regulations that stripped its ability to use its trademarks to market more than one variety per brand family and required 80% of cigarette packages (along with their distinguishing logos and images) to be covered with graphic warnings. That dispute followed others involving pharmaceutical firms pitted against Brazil, India, and South Africa in both national and international dispute resolution fora, governments claiming insufficient levels of intellectual property protection and enforcement against one another; and, all around, new bilateral and multilateral agreements steepening international law’s influence into domestic intellectual property protection regimes. While multifaceted, these disputes may be particularly complex because they require application of rules drawn from ostensibly distinct and self-contained international legal regimes. The PMI-Uruguay panel, for example, used the World Health Organization’s Framework Convention on Tobacco Control as part of its analysis of a dispute that originated in a bilateral investment agreement between Switzerland and Uruguay.

In Chapter 3 of the book, the heart of Ruse-Khan’s contribution, he provides a framework for evaluating these high-profile disputes. There he argues that cohesive approaches to intellectual property disputes can be logically ordered from the systems analysis he provides in Chapter 2: “technical– legal tools can derive from the rules or rule- systems whose relationship is to be determined” so that many disputes will implicate specific provisions of applicable law “(eg a Berne Convention rule that regulates the possibility of inter- se agreements such as the WIPO Copyright Treaty . . . or a CBD norm that is made subject to the interna­tional rules on the protection of IP).” (Pp. 31-33.)  Where “alternative” or “other” systems bear upon IP disputes, more broadly applicable rules of international law like the Vienna Convention on the Law of Treaties’ bias in favor of harmonization or the WTO Appellate Body’s approach to defining conflict can effectively order the rules adopted from outside lex specialis circumstances i.e. where applicable treaties or rules do not by their terms resolve IP disputes.

Indeed, as another reviewer has noted, Ruse-Khan’s contribution might be better understood as a systematic analysis of conflict-of-law and conflict-of-norms principles developed and then applied to the subject of intellectual property under various, sometimes competing, international legal regimes. It is not clear, for example, that even applying the useful framework he invents (as he does in Chapters 4-12) results in the “protection” of intellectual property.  Yet what does result is a rational approach by which stakeholders, interpreters, and arbiters may manage – with cohesion and legitimacy –  the increasing number and severity of international disputes over intellectual property.  As those disputes continue to invite application of rule-systems not contemplated by their conscientious designers nor their passive interpreters, Ruse-Khan’s analysis will provide a premier and precise tool.

Cite as: Sam F. Halabi, Developing a Matrix for Intellectual Property as Subject of International Law, JOTWELL (June 27, 2017) (reviewing Henning Grosse Ruse-Khan, The Protection of Intellectual Property in International Law (2016)), https://intl.jotwell.com/developing-a-matrix-for-intellectual-property-as-subject-of-international-law/.

An Imperial Court in a Post-Colonial Context

In this age of Brexit and the existential threats facing the United Kingdom, I find myself drawn to literature addressing the legacy of the British Empire. And in their new article, Constitutional Comparisons by A Supranational Court in Flux: The Privy Council And Caribbean Bills of Rights, Tracy Robinson and Arif Bulkan analyze a vestigial British imperial court, the Judicial Committee of the Privy Council (JCPC), in a post-colonial context. Law professors at the University of the West Indies, the authors examine the JCPC’s approach to constitutional interpretation through detailed analysis of its cases addressing Caribbean bills of rights. The article succeeds in highlighting significant questions about the JCPC’s legitimacy and function and provides insight into the very serious challenges presented by judging from a distance in a changing jurisdictional landscape.

The Judicial Committee of the Privy Council is a relic of the British colonial empire. During the imperial period, it evolved into the final court of appeal for roughly one quarter of the world’s population. Now, it hears appeals from a tiny number of former colonies, current UK territories, and Crown dependencies. The Anglophone Caribbean is at the core of the JCPC’s workload: In addition to the six overseas territories in the region, eight of the twelve independent Caribbean states send appeals to the JCPC, having retained its services following decolonization. Yet, rather than acting as an individualized apex court to the numerous intermediate courts over which it has jurisdiction, the JCPC instead has developed into a transnational or supranational court; its binding precedent can be applied across national jurisdictions. Of the 500 or so “Privy Counsellors” (the British cabinet members, politicians, clergymen, etc.) that advise the Monarch as members of the Privy Council, the Judicial Committee is staffed by a judicial subset comprising justices of the UK Supreme Court as well as judges of the various courts of appeal in England and Wales, Scotland, and Northern Ireland. Judges from some Commonwealth countries are eligible to sit on the JCPC, but only a few Caribbean judges have been appointed as Privy Counsellors, and those who were appointed were rarely empaneled on JCPC Boards (the groups of three or five judges that hear cases).

As one can easily surmise from this snapshot description, questions about the legitimacy of this distant and disconnected court were bound to arise, and Robinson and Bulkan’s work certainly refreshes those concerns. But rather than engaging in theoretical discussions of independence and accountability, the authors provide a nuanced and fine-grained analysis of the JCPC by looking closely at its output. In detailing the process and content of judicial decision-making through case analysis, they demonstrate the JCPC’s penchant for judicial shortcuts and a “lassitude” (p. 411) that calls into question the court’s effectiveness. (Although they do not make any prescriptive suggestions, it is clear that they are skeptical about the future of the JCPC.)

The authors focus on the JCPC’s interpretation of Caribbean bills of rights—in particular, the role of the prefatory or introductory section to the bills of rights in many post-colonial constitutions. In these charters, a broadly written opening that guarantees many rights often is followed by more detailed provisions protecting specific aspects of those rights or allowing for certain exceptions. In addition, some constitutions include a redress clause, giving individuals the right to apply to court to remedy rights violations. These redress clauses vary in whether they expressly exclude or include violations of the rights referenced in the broad introductory section.

In evaluating the justiciability or the content of an introductory section to a constitution’s bill of rights, the JCPC looks to other bills of rights—comparing constitutions to derive meaning. The court relies on this comparative enterprise in lieu of other types of constitutional interpretation, such as reading the introductory section in light of other textual material within the same constitution. By comparing and classifying constitutions, the JCPC has systematized its approach to interpretation.

This shortcut comes at a cost, particularly when observed against the backdrop of the JCPC’s shrinking jurisdiction. For example, the authors describe how a category-creating precedent derived from one constitutional regime maintains its bite in other national contexts—even when the original regime is no longer subject to JCPC review and thus the precedent can never be revisited. This “fossilization of constitutional understandings” (p. 395) directly affects (and appears to stifle) the power and relevance of various rights provisions. In addition, the JCPC’s comparative endeavor has little methodological rigor, leading to obvious selection bias. And, most damning, the authors ultimately conclude that the systemization “reduces how much a judge needs to know to function” (p. 383), suggesting a certain judicial weariness with the entire endeavor.

The JCPC’s approach may make some pragmatic sense given that many of these “decolonization constitutions” were negotiated documents between colonial governments and the British government. But, as the authors point out, the constitutions’ legitimacy therefore derives “less from their founding and more from their stability and interpretation over time” (p. 388). And the JCPC’s comparative approach can undermine the vibrancy of the constitutional rights provisions. For example, in a case from Barbados, Boyce v. R. [2004] UKPC 32, the JCPC’s decision to evaluate “an older Caribbean bill of rights [Barbados’ 1966 Constitution] in light of newer ones inevitably generated a very restrictive interpretation of the former” (p. 391).

This article focuses welcome and deserved attention on a court and a region that are underrepresented in the comparative literature. The authors’ broader contribution comes through their careful attention to the court’s decisions: Robinson and Bulkan raise serious questions about the trade-off between judicial economy and judicial proficiency at the JCPC—a delicate calculation that is relevant to all courts.

Cite as: 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)), https://intl.jotwell.com/an-imperial-court-in-a-post-colonial-context/.

Dynamic Democratic Dialogue

In recent years, the cornucopia of academic commentary on dialogic constitutionalism (or cognate terms like democratic dialogue) has been one of the richest and most creative in constitutional theory and comparative constitutional law. The debate has benefited from celebrated contributions from some of the world’s best-known constitutional thinkers, as much as from fresh thinking by younger scholars. The current debate began as a response to the institutional innovation, and later as a theoretical discourse, within some Commonwealth countries that adopted parliamentary bills of rights, although arguably the embryo of the model has an older pedigree in the Commonwealth tradition (e.g., the “manner and form” provisions of s.5 of the Government of Ireland Act 1920 or s.29 of the Ceylon (Constitution) Order in Council 1946). The development of the dialogic model has since also engaged distinctive practical challenges of different global regions, from North and South America, to Europe, Africa, and Asia. Within its broad rubric therefore it has not only embraced both common law and civilian systems as well as the developed and developing worlds, but also found diverse theoretical articulations serving a wide range of quite different constitutional challenges and contexts. Professor Alison L. Young’s recent book, Democratic Dialogue and the Constitution, is the latest and one of the most rigorous contributions to this already highly sophisticated debate over dialogic constitutionalism.

For those for whom at least the more extreme claims of the two counterposed models of legal and political constitutionalism hold little attraction and practical utility, dialogic constitutionalism has an almost intuitive appeal as a modus vivendi. In forcing institutional parity and dialogue between the judiciary and the political branches—rather than the supremacy of one or the other—it seems to both meet the requirements of representative democracy and the protection of normative principles, when societies are confronted with legitimate and reasonable but deep disagreements over matters of constitutional significance. It empowers the judiciary adequately to make authoritative statements about the scope of constitutional rights, while simultaneously maintaining the role of legislatures as forums of democratic deliberation and decision-making. The dialogic model also enhances the scrutiny of elected executives, by demanding equal emphasis on parliamentary as well as judicial forms of accountability. In eschewing strong-form judicial review, it addresses the democratic deficit of legal constitutionalism (the counter-majoritarian difficulty), and in abjuring the untrammelled parliamentary supremacy of political constitutionalism, it accommodates liberalism’s counter-majoritarian principles in the protection of individuals and minorities. In short, it sets to work the ideal institutional model for the principled negotiation of constitutional disputes in democracies, whether over rights or questions of a more general nature.

Even though some of the initial excitement with the novelty of the model has receded with the realisation of its limitations over time, it continues to exert a powerful appeal on constitutional theorists and designers. This is so for a number of reasons, of which perhaps the most obvious is that dialogic constitutionalism allows us an escape from some of the more otiose abstract debates over the normative superiority of legal or political models, through an alternative model of constitutionalism that is not merely convenient but also highly normatively defensible.

But especially in the developing world and the international practice of post-conflict or post-authoritarian constitution-making since the end of the Cold War, after a lengthy period of doctrinal dominance of a very strong-form model of legal constitutionalism—and then increasing anguish over its many failures in application—democratic dialogue offers fresh avenues of thinking for constitutional design. Liberal legal constitutionalism’s underestimation of the power of local histories, politics, and cultures, explains at least in part the many miscarriages of radical attempted constitutional transfigurations in non-Western societies. The less prescriptive and more flexible model of dialogic constitutionalism, by giving equal attention to the political as to the legal, has the potential to better serve these societies by articulating a coherent theory which can inform rights protection and democratic deliberation, checks and balances, and help resolve the often-elusive question of the appropriate balance between constitutional rigidity and flexibility.

And at least for some who are skeptical of the aptness, and fearful of the consequences, of revolutionary constitutional transitions, the sense of balance, restraint, proportion, and deliberation that is implied by a dialogic mode of constitutional decision-making points to the great first-order virtue of constitutional politics that Edmund Burke, following Cicero’s idea of artifices officiorum, classically enunciated as ‘prudence.’ To simplify, the Burkean notion of prudence is essentially that constitutional questions are not only about legal principles, rights and duties, but equally importantly about political considerations of peace and order, and indeed contextually about the historical and cultural ethos of a society. In addressing the relation between (legal) idealism and (political) realism, Burke’s thought retains its crispness today because any sensible methodology of contemporary constitutional theorising must surely be equally and simultaneously attentive to both abstract norms as well as practical realities. By bringing the three branches of the state into dialogue rather than defiance, dialogic constitutionalism seems to promote prudence in defining, structuring, disciplining, and ultimately reconciling the relationship between law and politics.

Alison Young’s Democratic Dialogue and the Constitution begins with a deconstruction of some of the idler assumptions that serve the current debate, exposing the conceptual instability of existing theorizations of dialogic as well as legal and political models of constitutionalism. The central problem here is that it has become necessary to over-determine the distinction between legal and political models, so as to make space for the dialogic model in between. Her analysis demonstrates how this “runs the risk of either providing an artificial divide between extreme forms of legal and political constitutionalism, leaving a middle ground for democratic dialogue, or pushing all accounts of constitutionalism into the middle ground, subsumed into accounts of democratic dialogue.” (P. 32.) This suggests that “democratic dialogue is either ubiquitous or non-existent.” (P. 30.) The explanation for this, Young argues, is that we see the distinction between legal and political models as one of control: we seek to categorize a constitutional system as belonging to one or other model by looking to whether legal-judicial or political-legislative controls have the final say on constitutional issues.

Young rejects this misleading approach, asking instead the question whether dialogue is different because of its dynamic rather than static nature. That is, dialogue is distinctive because it draws upon the foundational assumptions and values of the other two models in a dynamic way, but accords either set of values an equal importance and neither a relative superiority. The critical distinguishing feature of the theory of democratic dialogue Young offers is that its starting premise is not control but institutional interaction. Assuming that institutional interaction rather than conflict is better able to protect both rights and democracy, Young’s account demonstrates how dialogue can draw on both legal and political models in determining when the relative power of the different values ought to prevail when institutions interact.

In establishing the advantages of democratic dialogue, Young elaborates two forms of ‘inter-institutional interactions’: ‘constitutional counter-balancing’ (guaranteeing roles for both judiciary and legislature in the settlement of constitutional issues while ensuring no override for either) and ‘constitutional collaboration’ (incentivizing judicial and legislative institutions to work together by drawing on their intrinsic strengths and weaknesses). The central merit of dialogic constitutional design is that constitutional counter-balancing facilitates constitutional collaboration between courts and parliaments, thus maximizing both rights-protection and democracy.

Perhaps the book’s forte is that it goes beyond the protection of constitutional rights (which has tended to dominate the existing literature) to discuss democratic dialogue as a general model of constitutionalism that serves such ends as participatory and deliberative democracy, checks and balances, and stability and evolution, providing as it does so an elaborate normative framework for democratic dialogue. Beyond the UK and European contexts that are then discussed in the last chapters of the book, it succeeds admirably – and with an impressive display of theoretical and empirical scholarship – in establishing democratic dialogue as: “a particular form of constitutional design; as a distinct method of protecting human rights; a theory which advocates a particular way in which institutions should exercise their powers when determining rights-issues; and as a means of providing an accurate description of constitutional reality.” (Pp. 33-34.)

Alison Young’s views are the product of many years of research, reflection, and writing on the major issues of constitutional theory and comparative constitutional law that are tackled in great length, depth, and texture in this book. Despite the clarity of her exposition, it is a work of huge complexity and nuance, which promises to reward a more unhurried reading than was the basis for this brief initial assessment. There is little doubt it will generate much erudite commentary in the future. It would certainly be too early to characterize the book as a culmination of her work, but this latest iteration is an extremely persuasive exposition of a very refined theory of democratic dialogue as a general and heuristic model of constitutionalism. As such it would likely become a much-cited and influential work, especially as the UK enters a period of major constitutional change if not upheaval surrounding Brexit. It remains to be seen, however, whether constitution-makers in the world beyond the West would have the imagination to engage with her important insights, and indeed, the mettle to jettison the depleted constitutional technology from the 1990s to which many are still wedded.

Cite as: Asanga Welikala, Dynamic Democratic Dialogue, JOTWELL (April 5, 2017) (reviewing Alison L. Young, Democratic Dialogue and the Constitution (2017)), https://intl.jotwell.com/dynamic-democratic-dialogue/.

Justice Breyer’s Radically Pragmatic approach to Transnational Law

Justice Stephen Breyer, The Court and the World (2016).

Justice Stephen Breyer’s The Court and the World (also the basis of his Jorde lecture) [hereinafter TCW] is an important book. Every legal scholar should read it, because it makes the case, clearly and compellingly, that international, comparative and transnational law are increasingly central to the fabric of American legal practice.

At the heart of TCW are two central concepts: “foreign” and “interdependence.” The basic argument of the book, illustrated through many examples, is the claim that the “foreign” is of increasing relevance to the Supreme Court because of the increasing “interdependence” of the United States to other jurisdictions. I want to suggest that TCW sets out two different accounts of what foreign and interdependence are, and hence, two distinct senses of how they are interrelated.

On one account, what is increasingly foreign about the Court’s docket is that brings before the Court foreign persons, activities, and commerce. (P. 3.) Cases that have one or more foreign dimensions fall within the jurisdiction of American law and institutions, and increasingly generate cases that come before the federal judiciary, up to and including the Supreme Court, because the United States finds itself a world that is growing ever more interdependent, “a world of instant communications and commerce, and shared problems of … security, the environment, health, and trade, all of which ever more pervasively link individuals without regard to national boundaries.” (P. 4.)

For Justice Breyer, this first account of the relationship, between cases with a foreign element generated by patterns of growing policy interdependence, has implications for the American judicial mindset and American legal practice. In the most abstract terms, he states, “the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad.” (P. 81.) But as his careful and thoughtful discussions of antitrust law and copyright law illustrate, in order to resolve these cases, the Court has to go much further that simply demonstrate and deploy comparative awareness and literacy. Rather, it has to subtly reorient itself to federal statutes, some of the legal material at the very core of the American constitutional order.

TCW argues that the Supreme Court must marshal the intricate details of foreign law, foreign regulatory practices, and the foreign economic policies that underpin both, in the service of a theory of statutory interpretation that “must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web.” (P. 91.) Historically, federal courts considered themselves under the relatively weak but important interpretive obligation “to ensure that domestic and foreign laws did not impose contradictory duties upon the same individuals.” (P. 92.) But through a series of fascinating examples, Justice Breyer demonstrates how the Court “has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.” (P. 92.)

There is a radical pragmatism to this idea, in a way that is fitting for Justice Breyer. It is pragmatic because what motivates this interpretive orientation is a desire to ensure the effectiveness of the American regulatory state in an increasingly interconnected world. The effectiveness of American regulatory authorities is highly dependent on coordination and cooperation with foreign counterparts, which has concrete implications for very specific legal issues that come before the federal courts every day. What Justice Breyer proposes, in essence, is to renovate older doctrines of comity, by developing new bridges to historically distinct doctrines of administrative law that counsel deference to regulatory expertise. The twist is that the scope of deference to administrators is broadened beyond the expertise of American regulators to deference to foreign regulators with whom American authorities cooperate every day, based on the cues provided by executive branch institutions. One way of framing this legal innovation is to say that Justice Breyer brings administrative law into international law, through the cross-cutting theme of executive deference.

But in other ways, what TCW proposes is more radical. Although there are sometimes textual anchors that permit, invite, and even counsel such an approach to the interpretation of federal statutes, what Justice Breyer proposes is not rooted in the contingencies of legislative drafting. Rather, it is a non-textual canon of statutory interpretation, which emerges from the Court’s evolving understanding of the rise of networked governance, in a manner akin to how an earlier Court modernized American public law in the wake of the New Deal and the rise of federal agencies – a prior experience that Justice Breyer discusses as well. Moreover, although the regulatory networks that motivate a new doctrine of international administrative deference are built around executive institutions, it is but a small step to imagine federal courts, including the Supreme Court, as being a node in an international network of high courts that together enforce a transnational regulatory machinery in partnership with expert agencies. And so what might be thought of as commercial or private law, beyond the interest and expertise of most public law scholars, raises deep and profound constitutional questions about the roots, scope and even the very self-identity of the American legal order. Scholars of American public law will find the answers to these questions in very unfamiliar places that they ignore at their peril—in the jurisprudence of investor-state disputes arising under Bilateral Investment Treaties, in the theory and practice international commercial arbitration, and in the law of international trade.

Now let me turn to the second account of the relationship between the foreign and interdependence in TCW. Over the past decade and a half, debates over the foreign engagement of the Supreme Court have turned on the use of foreign law in constitutional interpretation, an umbrella term that unhelpfully runs together international and comparative law. This has been a polarizing debate that tracks familiar ideological divisions on the Court, and has been centered in a strand of Eighth Amendment death penalty cases and in the jurisprudence on same sex rights. Justices Kennedy and Breyer have engaged with foreign legal materials in arguing for expanding the scope of the relevant rights. It is a fairly sterile and deadlocked debate, and I was relieved to see that TCW devotes very little attention to it.

But at a more abstract level, the debate is important because what is at stake is the importance of foreign ideas and intellectual interdependence. The Supreme Court is increasingly part of a global community of high courts that face roughly comparable issues. TCW is important because it is an intervention in, and moves forward, important intellectual debates on how to imagine and understand the circumstances under which courts should engage with foreign legal sources as a source of persuasive, but not binding, authority. It also helpfully shifts the focus away from their current preoccupation with the scope of constitutional rights to questions of constitutional structure.

The point of entry for Justice Breyer is the Treaty Power. The Constitution grants the President the authority to make treaties, with the advice and consent of the Senate. Through the Supremacy Clause, treaties so made are the supreme law of the land. The key constitutional questions are how to reconcile the existence of this power with the legislative power of Congress, and rights-based constitutional limits on all exercises of public power. What energizes these old questions is the change in the contemporary character of treaty making, which increasingly encompasses the creation of international organizations that engage in rule-making in a large and growing number of areas, ranging over environmental law, financial services and banking, cyber-governance, energy, intellectual property, labor law, counter-terrorism, navigation, and sports in addition to better known fields, such as human rights and international trade. These organizations are often highly institutionalized, and exercise law-making, law-interpretation, and law enforcement functions historically associated with nation-states.

One of the great constitutional questions of the 21st century will be how the American constitutional order comes to terms with the thickening reality of global law. The initial signs are not promising. America has one of the oldest and most continuous constitutional traditions in the world, and introduced many innovations into constitutional design, such as written constitutionalism, federalism, and the combination of judicial review and constitutional supremacy to yield judicial supremacy. But in the handful of cases where the Supreme Court has had some initial encounters with these issues, regrettably, from a comparative perspective, it has not adopted a particularly sophisticated or nuanced approach to these issues.

Justice Breyer’s point is that the doctrinal framework surrounding the treaty power has not yet reached the substantive issues of legislative delegation and rights that really at the heart of genuine, good faith misgivings about the rise of international regulatory authority. One of the great strengths of TCW is that it takes these concerns seriously in a way that disentangles them from the kind of polarized politics that often surround these issues – with liberal justices more willing to provide a legal basis for cooperation with international institutions, and conservative justices much less so – by directing American readers to the extensive experience of European constitutional courts in addressing these questions, where civil liberties and democratic concerns have underpinned resistance to supranational law.

For over four decades, every major constitutional court in Europe has wrestled with what is, in essence, the flip side of the merger of international and administrative law, in the context of the European Union. In a nutshell, deference to international regulatory cooperation mediated by national executives is subject to constitutional boundaries. These courts have done so in a broad variety of cases ranging from counter-terrorism to data privacy, arrest warrants, and quantitative easing. There is a very complex set of responses for how different constitutional courts have addressed this issue. On rights, for example, some courts have asserted the power to review the decisions of international authorities on the basis of national bills of rights. Others have agreed to defer to international organizations if they have norms of rights protection substantially comparable, but not necessarily identical, to national constitutional protections. Yet another approach has been for national courts to interpret the treaties that empower international organizations to assess if they have acted in excess of their authority. Some courts, most notably the German Constitutional Court, have set outer boundaries to the delegation of national legislative authority to international organizations. Justice Breyer’s point is not that American courts should follow one or more of these approaches. Rather, he argues that the benefit of intellectual engagement with foreign constitutional ideas is to learn from them, to help imagine how American courts might think about the evolution of American constitutional doctrine as they wrestle with the same issues. Comparative reflection is a tool and stimulus for reflection, to produce a response that is appropriate for the American constitutional system. I could not agree more.

In conclusion, I hope that TCW sparks a much needed and overdue conversation in the American legal academy. TCW is a call for legal educators to reflect deeply on how American law schools should equip our students to adapt and thrive in this rapidly changing world.

Cite as: Sujit Choudhry, Justice Breyer’s Radically Pragmatic approach to Transnational Law, JOTWELL (February 1, 2017) (reviewing Justice Stephen Breyer, The Court and the World (2016)), https://intl.jotwell.com/justice-breyers-radically-pragmatic-approach-to-transnational-law/.

Business Lobbying Goes Global

Melissa J. Durkee, Astroturf Activism, 69 Stanford L. Rev. (forthcoming 2017), available at SSRN.

Citizens for Sensible Control of Acid Rain. Consumers for World Trade. The American Forest and Paper Association. The Turkish Confederation of Businessmen and Industrialists. These are a few of the 4600 organizations that are formal, registered consultants to the United Nation’s Economic and Social Council. They are also examples of the mode of corporate access to international lawmaking that is the subject of Melissa J. Durkee’s excellent article, Astroturf Activism.

At the heart of Astroturf Activism is a nuanced description of institutionalized corporate participation in international lawmaking. It takes readers behind the curtain at the United Nations to examine a system of registering non-governmental organizations (NGOs) as consultants with a special advisory role. The article’s pithy title captures a central concern: that businesses lobby international lawmakers through “’astroturf’ imitations of grassroots organizations,” using “nonprofit NGOs as front groups to advance business interests through the U.N. consultancy system.” Despite the title, however, the author resists simple identification of NGOs as the good guys and business as the bad. She suggests here and in other work that business participation can sometimes be beneficial, lending expertise or breaking “geopolitical logjams.”

The article convincingly challenges the idea that NGOs are all classic public interest organizations. It reacts in part to a literature that has praised the NGO as a democratizing force, lumping all non-state organizations together. In illustration, the article quotes a former UN Secretary-General, who praised the rise of NGO consultants as “global people-power.” Drawing on a mix of materials, including the UN Economic and Social Council’s own library of resources, the author elaborates a more complicated category that includes trade groups and business-controlled NGOs.

Cynics may nod along knowingly, unsurprised to hear that the “Citizens for Sensible Control of Acid Rain” NGO was formed by coal and electricity companies. But even cynics will find this article worthwhile. It analyzes institutionalized participation in international law making. This is not just lobbying, but rather a formal legal structure that permits and even encourages lobbying. Moreover, this is not just lobbying, but rather a formal legal structure that incentives hidden participation and fails to leverage positive participation by business.

The article also convincingly argues that the formal access rules are obsolete.  They originate in a period when few businesses operated across national boundaries. The article persuades us that the rules have not caught up with the rapid growth of global business. In particular, they do not account for multinational business entities, which have the ability and desire to influence lawmaking on a global scale.

The nuance of this project is also its challenge. Because it does not altogether condemn business participation, pinpointing the problem with the current system can be difficult. Does its harm lie in the content of the resulting law? Is the lack of transparency a problem in itself? How non-transparent is this system? Does the Council really think that Citizens for Sensible Control of Acid Rain is a grassroots organization? At what point do the business donations—on which NGOs rely—turn them from the natural green stuff into astroturf? The difficulty of articulating the problem also carries over to potential solutions. The article briefly sketches two approaches, increased disclosure and direct access for individual businesses, but wisely treats them as signals of future work to be done.

These open questions do not detract from the article’s many strengths. Indeed, they are only possible and provoked by the article’s rich study, thoughtful analysis, and compelling story of corporate involvement in the making of international law in our modern, global context.

Cite as: Verity Winship, Business Lobbying Goes Global, JOTWELL (January 18, 2017) (reviewing Melissa J. Durkee, Astroturf Activism, 69 Stanford L. Rev. (forthcoming 2017), available at SSRN), https://intl.jotwell.com/business-lobbying-goes-global/.

Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design

Mila Versteeg & Emily Zackin, Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design, Am. Pol. Sci. Rev. (forthcoming 2016), available at SSRN.

In their recent paper in the American Political Science ReviewVersteeg and Zackin offer an important contribution to evolving debates on constitutional design, convergence and diffusion. They suggest that, far from being the only model in circulation in global constitutional thinking, the US constitutional model of highly abstract and entrenched constitutionalism is in fact no longer even the dominant model: at a US state level, and globally, a quite different model of very specific and flexible constitutionalism is in the ascendancy. This model blurs the line between constitutions and ordinary legislation. It also reflects a quite different kind of thinking about the relationship between constitutions, democracy, and the people: rather than empowering courts to interpret vague or abstract constitutional guarantees, and entrenching those decisions against repeal by ordinary democratic majorities, Versteeg and Zackin suggest that this model seeks to constrain courts, legislators and executive actors to act in line with the preferences of a majority of citizens.

In this sense, it represents a quite different take on traditional understandings of democracy and distrust: it is the expression of a form of popular distrust of elite institutions generally, rather than more particularized distrust of legislators of the kinds such as John Hart Ely envisaged.1 Versteeg and Zackin further argue that there is a close logical relationship in this context between a preference for constitutional specificity and flexibility: specific constitutions may help popular majorities control elite actors, but they are also more likely to require active updating by citizens themselves, rather than elite actors. As I have also suggested in prior work, whatever the scope for courts and legislators to update of a constitutional standard by way of ‘common law interpretation’,2 or polycentric forms of interpretation,3 there is far less scope to apply such approaches to more specific rule-like constitutional provisions.4

In addition to identifying this new model of flexi-specific democratic constitutionalism, and its logical inter-dependence, Versteeg and Zackin offer compelling evidence of its increasing diffusion or predominance both at a US state constitutional level and globally. Indeed, this empirical dimension to their project is particularly wide impressive, and no doubt one of the reasons the piece found a home in the APSR. One of the things I also particularly liked about the piece in this context is that it combines both state-of-the-art large and empirical approaches with a more historical, qualitative analysis of the historical origins of various flexi-specific constitutional provisions: drawing on Zackin’s earlier archival work for her excellent book, Looking for Rights in All the Wrong Places, the piece quotes from a range of legislative, newspaper and scholarly sources from the late 18th and early 19th century as to the origins of many specific constitutional provisions.

While I am very sympathetic to their project, their work did, however, raise two broad questions for me, in part connected with my own prior work on constitutional specificity and amendment. First, would it be useful to further disaggregate the model of flexi-specific constitutionalism into two broad categories: one aimed at the control of legislative and executive decision-making, and another at the control of courts? The two models potentially have somewhat different origins, or logics: in most cases, it seems likely that attempts to control legislatures or executive officials will arise out of the kind of principal-agent situation Versteeg and Zackin identify. I was reminded of this only last week visiting Chicago, when I came across a letter to Illinois residents outlining the scope of the proposed amendment to section 11 Art IX of the Illinois State Constitution: this amendment is very long, detailed, and if successful, could still be relatively easily repealed – and is all about the relationship between voters and their elected representatives. It attempts to limit the ability of certain local units to use funds appropriated for transportation for other purposes.

But for provisions speaking more directly to courts, in some cases at least, the origins of such provisions may be somewhat different: they might originate in a belief that it should be legislatures rather than courts that decide certain questions, or in a concern to provide ‘insurance’ for certain legislative policies against the risk of judicial invalidation.5 In some cases, provisions that purport to authorize certain forms of legislative action, and thereby prevent courts from invalidating such action, might thus have quite different origins or underpinnings to provisions that require forms of legislative action.6 A good example concerns the kinds of labour rights provisions found in various state constitutions in the US and discussed by Versteeg and Zackin at some length: some of these provisions were clearly directed at requiring state legislatures to limit working hours (mandatory by-law clauses), but others to insulating legislative action from judicial invalidation (permissive by-law clauses).

Second, I wonder whether flexi-specific constitutions are in fact a true alternative model of constitutional design, or something closer to an important sub-type or sub-form of constitutional design. As an empirical matter, it is not clear that the increasing specificity—and amendment—of many US state and global constitutions is in fact distributed evenly across all areas of constitutional law. Rather, it may well be that flexi-specificity is concentrated in certain areas – dealing with federalism, various legislative and executive policies, and not the fundamental democratic, separation of powers rule of law, or rights-based provisions of a constitutions. In Brazil, for example, as an important example of the trend Versteeg and Zackin identify, there have been large numbers of constitutional amendment since the adoption of the 1988 Constitution, but almost none of these amendments have touched what one might call ‘the basic structure’ of the Brazilian Constitution. In the US, state constitutions have also become increasingly specific against the backdrop of a quite abstract, and entrenched, set of federal constitutional guarantees that clearly modify or set limits on the scope of the flexi-specific state constitution. Think of the recent decision of the US Supreme Court in Obergefell: the Court held that the attempt to create increasingly specific prohibitions on same-sex marriage under state constitutions was inconsistent with the more abstract and entrenched guarantee of equal protection under the Fourteenth Amendment, and thus invalid and ineffective as a form of constitutional change.

Theoretically, we might have two broad reasons to doubt whether flexi-specific constitutions can succeed as a standalone constitutional model. First, if constitutions are extremely long and detailed, citizens may have difficulty understanding them, and thus be relatively unlikely to identify and defend the constitution. (Indeed in other important work, Versteeg has shown with Stephanopoulos that the ability to understand a constitution is a key determinant of constitutional identification.) This may itself mean that flexi-specific constitutions are far more likely to be replaced than more general, abstract ones, so that there is a kind of Darwinian pressure toward more abstract rather than specific constitutions.

Second, if constitutions are too specific, they may ultimately end up creating forms of inconsistency or overlap that necessarily require courts themselves to resolve a range of interpretive ambiguities. Tom Ginsburg and I make this point in our work on insurance swaps: we suggest that if drafters adopt highly specific but conflicting provisions, this effectively delegates to courts the task of resolving relevant conflicts. I have also made a similar argument about attempts to codify certain constitutional exceptions or carve-outs, and both the ambiguities this creates, and the degree to which ambiguity can be empowering rather than constraining of constitutional courts.

Ultimately, this may mean that for flexi-specific constitutions to endure, and/or achieve their aims in terms of judicial constraint, they cannot be entirely standalone models of constitutional design. Instead, they must be nested within a broader, more abstract and entrenched constitutional framework.

Constitutional ‘tiering’ is already a relatively familiar idea in the context of the design of constitutional amendment rules: as Richard Albert has pointed out, there are a range of constitutions worldwide that adopt different levels of entrenchment or flexibility, based on the nature of the question at stake. David Landau and I have also recently suggested that constitutions often adopt a tiered approach to constitutional language, as well as entrenchment: they adopt quite specific provisions for a range of routine or ordinary constitutional matters, but more abstract, parsimonious language for core constitutional values designed to bind a community together, or protect the basic constitutional or democratic order.7

Tiering of this kind may be done better or worse in different constitutions, but it seems a relatively common feature of democratic constitutional design: just think of the role of preambles or constitutional value statements. As Landau and I have pointed out in the context of constitutional entrenchment debates, tiering of this kind can also often occur ex post – by judges selecting certain provisions for special reinforcement and validation – as well as ex ante.

In sum, I am highly persuaded by both the empirical evidence Versteeg and Zackin present, and by their claim that the field of comparative constitutional studies needs to do more to recognise and grapple with the increasing centrality of flexi-specific forms of constitutionalism. But I also wonder if we shouldn’t divide this trend into two types (legislative and judicial-facing), and do more to recognise it as a form of nested democratic constitutional development, which is best understood as part of a tiered approach to both constitutional amendment and language.

  1. Compare John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Rosalind Dixon, Constitutional Drafting and Distrust, 13 Int’l J. Const. L. 819 (2015). []
  2. David Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996). []
  3. Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943 (2003). []
  4. Rosalind Dixon, Updating Constitutional Rules, Sup. Ct. Rev. 319 (2009); Rosalind Dixon, Amending Constitutional Identity, 33 Cardozo L. Rev. 1847 (2012). []
  5. Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003); Tom Ginsburg & Rosalind Dixon, Constitutions as Political Insurance (Unpublished manuscript, 2016). []
  6. Compare Rosalind Dixon & Tom Ginsburg, Deciding Not to Decide: Deferral in Constitutional Design, 9 Int’l J. Const. L. 636 (2011) (identifying mandatory versus permissive by-law clauses). []
  7. Rosalind Dixon & David Landau, Exporting Art V? Tiering Constitutional Amendment (unpublished manuscript, 2016). []
Cite as: Rosalind Dixon, Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design, JOTWELL (November 17, 2016) (reviewing Mila Versteeg & Emily Zackin, Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design, Am. Pol. Sci. Rev. (forthcoming 2016), available at SSRN), https://intl.jotwell.com/constitutions-un-entrenched-toward-an-alternative-theory-of-constitutional-design/.

Sheltering the Public From Intellectual Property

Sam Halabi, International Intellectual Property Shelters90 Tul. L. Rev. 903 (2016).

Often formulating a legal policy response to a problem starts with finding the correct vocabulary. While complex economics, political, and sociological crises do not get managed with magic words, failure to give a name to a problem makes solutions elusive. In the case of international intellectual property, the problem of overly expansive intellectual property rights, sometimes adopted by nation states under trade and finance pressures, is seen solely as a solution to the ubiquity of piracy and theft of economic value. Values of access and commons management offer some countermeasures to broad property rights. But these responses sometimes feel piecemeal and less than systematic.

Enter Professor Sam Halabi, a scholar and teacher of international health law at University of Tulsa Law School, shifting to University of Missouri, Columbia Law School in January 2017. His recent article in the Tulane Law Review is one I like a lot, and I hope others active in international intellectual property law and health policy do as well. Professor Halabi’s contributions are conceptual and linguistic. International Intellectual Property Shelters, although with unfortunate resonances of “tax shelters,” describes pockets created by treaties and national law of exceptions to strong intellectual property rights. These pockets permit access to medicines, promotion of biodiversity, regulation of neonatal care, and control of tobacco—each threatened by the rampant spread of intellectual property rights. Upon this neologism, Professor Halabi delineates an established international intellectual regime that governs and limits intellectual property rights. His article not only informs us about the key features of this regime and the legal, political, and economic mechanisms that drive it.

Professor Halabi’s article defines a unique and important niche in the field of international law. At the intersection of intellectual property and health law, his work illustrates how institutions are designed at the national and global levels to regulate intellectual property rights for the public interest. What the article reveals is a rich array of transnational regulations, mediated through treaties that support national legislation to limit intellectual property rights in the arena of health and safety. The Tulane piece provides several examples, including the 2002 Doha Declaration on Health and Safety, proposed treaty on medical research and innovation, the WHO’s influenza pandemic preparedness framework, and international codes for the marketing of breakfast. His two other examples on biodiversity and tobacco control illustrate for our purposes the tone and structure of his arguments.

The United Nations Convention on Biodiversity, Professor Halabi reminds us, has created an international framework that has served to create national legislation regulating patent rights in agriculture and genetic resources. These regulations promote regional diversity in agricultural products through treaties that allow for the saving and reuse of genetically modified seeds by farmers. In addition, they serve to allow multinational corporations to make use of traditional agricultural knowledge local to the community and share the benefits of commercialization with subnational constituencies, such as indigenous communities, farmers, and holders of traditional knowledge. Such benefit sharing serves to direct profits from exploitation of traditional knowledge back to the national economy from multinationals.

Tobacco control has also been the subject of an emerging international regulatory regime. This regime is marred by economic and legal tensions between tobacco companies seeking new markets for their products and national governments desiring to stem the adverse health consequences from tobacco consumption. While the agreements over biodiversity center on patent rights, limitations on trademark rights and tobacco advertising are the basis for the international regulatory system for tobacco. The development of this system, however, has been far from smooth as tobacco companies challenge the restrictions on their trademarks, through such requirements as plain packaging, by alleging violations of bilateral investment treaties with national governments. So far, the efforts of the companies have not been successful, and regulations on tobacco for the goals of health and safety serve as another example of an international intellectual property shelter regulating rights for the public interest.

As Professor Halabi describes, these shelters “regulate intellectual property by creating conditions for access to patentable subject matter, elimination or substantially modifying trademarks at their core level (i.e. by source identification), and redistributing the benefits of intellectual property that either draw from the resources of low- and middle-income countries or disproportionately affect their welfare, or both.” (P. 964.) He concludes, “international intellectual property shelters mediate the creation, flow, and concentration of global wealth between wealthy and low- or middle-income countries.” (P. 971.)

Professor Halabi has identified an important set of developments in international intellectual property law. He has also clearly delineated how these developments are implemented in practice, both at the transnational level through treaty regimes and at the national level through legislation. This article should receive attention from a range of scholars, especially those working in international intellectual property law and health law. Professor Halabi’s work also has much to offer for policymakers and those interested in institutional design of regulations. I look forward to seeing how Professor Halabi develops this line of research, especially as he moves from article to book. The end product should present a much-needed normative and political framework for understanding international intellectual property. For now, however, this article provides much fodder for debate among scholars and policymakers.

Cite as: Shubha Ghosh, Sheltering the Public From Intellectual Property, JOTWELL (October 19, 2016) (reviewing Sam Halabi, International Intellectual Property Shelters, 90 Tul. L. Rev. 903 (2016)), https://intl.jotwell.com/sheltering-the-public-from-intellectual-property/.

The Cruel Optimism of Human Rights and Legal Justice

Cyra Choudhury

Cyra Choudhury

In her article Precarious Desires and Ungrievable Lives: Human Rights and Postcolonial Critiques of Legal Justice, Ratna Kapur argues that for the vast majority of subordinated peoples, faith in international human rights and, indeed, in law as a vehicle to achieve equality, recognition, and redress for harm has often been misplaced. For sexual subalterns in particular, liberal legal institutions and laws are part of and promulgate a heterosexist normative order that constantly refashions these precarious desires and their justice claims into conformity with that order. Kapur suggests that instead of investing our energies as activists in law, we should rethink our notions of justice by moving away from the constraints of liberal legalism to more affective and postcolonial registers.

There are three points that make this article particularly important and a welcome addition to the critical literature on international human rights. First, it asks us to question whether human rights activism and the law are the best, let alone only, mode of engagement for subordinated populations. Second, it directs our attention to that which is often lacking in law in general and international law in particular: the affective, lived experiences of the subject of rights. In particular, for LGBT people, the article makes visible the uncomfortable and cruel optimism of human rights in an already dominant heteronormative order. And it reminds of the postcolonial critique of liberalism and liberal rationality.

Kapur’s intervention is a welcome addition to a growing body of work that articulates a deep dissatisfaction with the law as emancipation and specifically with an increasingly coopted body of human rights practices, institutions, and vernaculars. But given both that justice has been so bound up with law, and that the human rights lexicon has been the primary means of demanding justice in the international sphere, few legal theorists have sought to offer alternatives. Critiques of human rights abound, but are there other paths of activism than this powerful yet often ambivalent discourse and practice? Kapur’s innovative appropriation of affect theory combined with a postcolonial critique of liberal epistemology suggests that for a richer, truly transformative, and more satisfying lived experience of justice, sexual subalterns cannot rely on such a deeply heteronormative framework of legality.

Kapur first lays out the deficiencies in human rights by using Judith Butler to demonstrate how human rights fails to recognize certain sexual minorities and gendered subjects and the harms that these subjects may experience. As Butler theorizes, human rights has not solved the problem of hierarchies of grievability1 in which some lives are simply not grievable to those at the top of the hierarchy. Regardless of international human rights’ theoretical assertion of equality and universality, the political reality has demonstrated that subjects can and do lose the rhetorical and legal protection of “humanity.” As Kapur aptly points out, “Those who are considered inhuman or whose subjectivity is effaced in the sense that there was either no human there in the first place or no life, cannot experience injury, or harm or erasure” (P. 269.) The “human” does not exist outside of its political construction as an a priori legal artefact. It is created through social relations and politics and, thus, becomes recognizable by law. Kapur argues that this undermines any notion of a universal human rights subject. There are people who are left out of protections of legal justice that haunt it, reminding us that they exist: the sex worker and the transgendered, among others.

If justice is conceived of as freedom, Kapur questions whether this can ever be fully realized within liberalism. Tracing the advocacy for LGBT rights and women’s rights, Kapur articulates the limits of these interventions in fully achieving “justice”. She notes:

To be recognised as a victim of sexual violence in human rights law is important. But such recognition is a part of an already existing process that only recognises certain gender arrangements and performances as legitimate and addresses complaints that emanate from a subject who complies with such arrangements. Justice requires compliance and failure to comply renders an individual a deconstituted subject in law. (P. 271.)

It is not that decriminalization of homosexuality or the passage of stricter rape laws do not matter. Rather that legal moves cannot hope to encompass justice as freedom. The ease with which human rights and legal justice can be coopted into missions of homonationalism or feminist imperialism and the cultural imperialism that often accompanies such projects, she suggests should give us pause. Yet, the difficulty is that justice and human rights is a thing that sexual subalterns and the abject cannot not want. One of the reasons this may be the case is that human rights has become the lingua franca of articulating injury in the international. And as Kapur recognizes, we must sometimes necessarily settle for what human rights offers us—at a minimum, a language (no matter how impoverished) to express our abjection and to demand legibility as humans whose rights should not be contingent on total conformity.

Nevertheless, there are those who cannot conform to the requirements of the law without radical change (sex workers and transgendered people whose sexuality is determined by the state are examples). For those ungrievable lives with their precarious desires, there are few alternatives. For those whose conceptions of justice include such lives, Kapur suggests alternative registers that can be used to make such precarious desires at least socially legible.

Having laid out the critique of the liberal legality of human rights, Kapur very aptly points out “The critiques do not in and of themselves give rise to a strategy, but they prompt an exploration into whether it is possible to turn away from legal justice as a freedom project, and for justice to thrive in an environment outside a liberal imaginary” (P. 282.) She suggests two moves that are required to reorient justice away from its constraints. First, Kapur asks us to interrogate the ways that progressive politics pursued through human rights might actually make some groups even more precarious. Jasbir Puar’s work on homonationalism whereby LGBT groups demanding recognition do so at the expense of stereotyping and marginalizing Muslims who are already subject to discrimination in the War on Terror is a well-known example. The second move and perhaps more important move is to turn away from the law, delinking it from justice. She offers two alternative registers that can be the bases for liberation and justice: feminist affect theory and non-liberal, postcolonial epistemologies.

Kapur uses Lauren Berlant’s work on affect and her concept of cruel optimism to raise questions about the ways in which justice projects both miss the quotidian oppression of marginalized lives yet hold out hope that the oppression will be redressed.

Engagement with the possibilities of affect foreground how the marginalised or excluded subject continues to live and survive in the face of evidence that life is precarious. Coping takes place through a continued belief in the fantasy and creation of attachments and desires for objects that may in the end serve as obstacles to a subject’s flourishing (P. 285.)

By focusing on the present, the daily affective lives of these subjects affords us the opportunity to understand the interplay between justice and injustice that is obscured by the “pursuit of legal justice through human rights” which “may be missing the point altogether” (P. 286.)

As for the turn to non-liberal epistemologies, Kapur turns our attention to postcolonialism as a way to escape the liberal legal order. Postcolonial thought, like that of Gandhi and Tutu with their engagements with forgiveness and truth could offer us a productive non-legal way to think about justice. Kapur ends with an exploration of Western thinkers who take this approach towards the end of their lives: Eve Sedgwick’s turn to Buddhism and Michel Foucault to to the political spirituality underlying the Iranian Revolution. This is not to suggest that a turn to religion as an alternative to liberal secularism is the answer but to point to the different epistemic communities that are often neglected by international law and human rights theorists . Reclaiming these epistemologies is particularly important for those in the Global South who have been underserved by liberal legalism and the justice claims that rely upon it. Kapur’s article offers us new ways of thinking about liberation and our affective attachments to the law as the principle mode of securing it.

  1. Judith Butler writes that

    [G]rievability is a presupposition for a life that matters….Without grievability, there is no life, or, rather, there is something living that is other than life. Instead, “there is a life that will never have been lived,” sustained by no regard, no testimony, and ungrieved when lost. The apprehension of grievability precedes and makes possible the apprehension of precarious life. Grievability precedes and makes possible the apprehension of the living being as living, exposed to non-life from the start.

    Judith Butler, Frames of War: When is Life Grievable? 14-15 (2009). []

Cite as: Cyra Choudhury, The Cruel Optimism of Human Rights and Legal Justice, JOTWELL (September 20, 2016) (reviewing Ratna Kapur, Precarious Desires and Ungrievable Lives: Human Rights and Postcolonial Critiques of Legal Justice, 3 London Rev. Int’l L. 267 (2015)), https://intl.jotwell.com/the-cruel-optimism-of-human-rights-and-legal-justice/.

Understanding Unconstitutional Amendments: Reflections on Comparative Constitutional Doctrine and Method

Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015).

Rosalind Dixon and David Landau’s Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment contributes significantly to at least two fields of legal scholarship: the writing on unconstitutional amendments and the literature on comparative constitutional law. In what follows, I will highlight how this most impressive text contributes to each of these fields.

Consider first the article’s contribution to the writing on the doctrine of unconstitutional amendments. As the authors’ exhaustive citations reveal, scholars have long examined how courts should determine whether “some constitutional amendments are substantively unconstitutional because they undermine core principles in the existing constitutional order.” (P. 608.) Dixon and Landau state with striking clarity the stakes that underlie this debate. They note that the doctrine creates a slippery slope problem: judicial oversight can create a brake on attempts to enshrine in a constitution measures that unambiguously undermine its democratic legitimacy, yet there is a risk that courts will extend the doctrine to cases in which there is only reasonable disagreement about a particular interpretation of the constitution and therefore no serious threat to the polity’s democratic order. When a court overreaches in this way, the authors note, it frustrates the political branches’ ability to pursue a constitutionally recognized avenue for resolving a reasonable disagreement with the judiciary. Dixon and Landau describe the consequences of such judicial overreaching: “Giving courts unfettered power to invalidate amendments for incompatibility with their own prior preferred reading of the constitution will create a clear democratic danger or cost.” (Id.)

An academic article can add much to a debate by clearly framing a problem in the way that Dixon and Landau have done, but they go further than this. They prescribe a novel and compelling solution that should influence how academics and courts view the problem of unconstitutional amendments. And in the course of developing this solution, they advance an ongoing discussion about how courts should engage in comparative constitutional law. Consider first their proposal.

After illustrating the slippery slope problem with close analyses of case studies drawn from the Indian and Columbian experiences, the authors survey judicial attempts to address it. One set of solutions seeks to narrow the doctrine by applying it to a limited set of institutional provisions or a closed set of fundamental principles. (P. 624.) This solution is flawed, Dixon and Landau note, because it does not respond to situations in which a government can make changes that, considered individually, would not significantly affect a polity’s fundamental democratic character, but in the aggregate likely would. (P. 625.) A second set of solutions supplements the narrowness approach with “a potential adverse impact standard.” (P. 626.) According to this standard, any amendment that threatened a constitutional order’s democratic foundations would be invalidated. Yet this solution fails because of its evident problems of overbreadth. (P. 627.) Instead of resolving the slippery slope problem, this proposal reproduces it.

Dixon and Landau’s doctrinal prescription is ingenious and avoids the shortcomings of the alternatives. They argue for a “broad but weak standard.” (P. 627.) The standard is broad, in that it is not limited ex ante and therefore would enable a court to identify the diverse ways in which a constitutional amendment can threaten core democratic values. The standard is weak, in that it would apply only when a constitutional amendment would threaten to have a “substantial adverse impact” on such values. A court seeking to apply such a standard faces difficulties at two stages: “(1) the identification of which principles and values must be protected against substantial adverse impact and (2) the determination of whether a given constitutional amendment actually has such a substantial impact.” (P. 629.) Dixon and Landau recommend that courts consider the practices and case law of other jurisdictions when they embark on these stages of analysis. The authors survey an impressive array of examples in order to illustrate how such analyses could be undertaken.

The ingenuity and novelty of Dixon and Landau’s proposal advances significantly the literature on unconstitutional amendments, while the methodology underlying the proposal represents an important contribution to the broader field of comparative constitutional law. In their examination of the different forms that the doctrine of unconstitutional amendment can take, the authors adopt what I would characterize as a decision-rules approach to comparative constitutional law, which focuses on the kinds of rules that courts use when interpreting and applying a constitution, and examines the considerations that go into selecting a specific rule. Constitutional scholars who have applied this approach in the domestic context include Kermit Roosevelt III (The Myth of Judicial Activism (2006)) and Richard H. Fallon Jr. (Implementing the Constitution (2001)). Echoes of this approach can be heard in Dixon and Landau’s discussion of standards and rules (P. 623), and in the assessments of the costs and benefits of the different constitutional standards that we surveyed above.

In adopting a decision-rules approach, the authors respond to one version of the problem of incommensurability in comparative constitutional law. The problem can be stated in practical terms: because of social, economic, political, and historical differences among constitutional orders, it is folly to compare them and reckless to prescribe solutions that would purport to apply across orders. A decision-rules approach to comparative constitutional law addresses this problem directly. It examines the costs and benefits of courts’ adopting a particular form of constitutional rule and then tests the analysis against specific contexts. Dixon and Landau offer a particularly rigorous demonstration of how this can be achieved. Moreover, they pose an implicit challenge to those who are generally skeptical of prescriptions that are offered across constitutional jurisdictions. The authors challenge those who would disagree with their proposal to demonstrate, with specific examples, why a broad but weak standard does not adequately respond to the risks they identify with the doctrine of unconstitutional amendments. Such a challenge concretizes the debate about the desirability of comparative constitutional prescriptions and removes it from the realm of abstract concerns about incommensurability.

I close this review with Dixon and Landau’s second major contribution to comparative constitutional law, which responds to a second version of the problem of incommensurability. Critics of constitutional borrowing sometimes argue that it is democratically illegitimate. According to this criticism (which was enunciated perhaps most forcefully by Justice Scalia), when a court incorporates into its decisions the constitutional norms of foreign jurisdictions, it undermines the sovereignty of its constitutional polity. This is so, the critics claim, because constitutional norms are indissociably tied to the beliefs and values of a given polity and courts therefore usurp the will of the political community when they engage in constitutional borrowing.

Dixon and Landau’s approach to applying their broad but weak standard responds to this criticism. Recall that they propose that courts look to comparative constitutional sources and experiences in order to reflect upon the values and institutions of their own polity. In this approach, the utility of the foreign materials must therefore be assessed by appeal to reasons that are convincing within a court’s own constitutional order. In other words, the materials would aid a court’s reflections only if they could explicitly be engaged on terms that are considered to be legitimate within the court’s polity. As a consequence, a court applying Dixon and Landau’s approach would seem to affirm its polity’s constitutional values and contribute to an ongoing discussion about them.

The approach’s promise is revealed when the authors examine a hypothetical assessment of some of Germany’s “institutions of militant democracy” (P. 634), including political party-banning. Dixon and Landau argue that although a German judge may find no consensus among constitutional democracies about the significance of such an institution, she may find it to be of fundamental importance to the German constitutional order. The authors note: “Transnational engagement will nonetheless act as a second look, forcing constitutional judges to articulate compelling reasons why a value or institution is fundamental, despite not being seen as essential elsewhere.” (Id.) It is difficult to see how this kind of recourse to comparative constitutional materials would amount to an act of judicial usurpation.

As we have seen, Dixon and Landau’s article clarifies debates around, and offers a novel proposal in respect of, the doctrine of unconstitutional amendments. It also tackles long-standing concerns about incommensurability in the comparative constitutional law literature. An article that did any one of these things would be an important contribution. The fact that Dixon and Landau do all of them marks their text as most worthy of sustained and careful attention.

Cite as: Hoi Kong, Understanding Unconstitutional Amendments: Reflections on Comparative Constitutional Doctrine and Method, JOTWELL (August 18, 2016) (reviewing Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015)), https://intl.jotwell.com/understanding-unconstitutional-amendments-reflections-on-comparative-constitutional-doctrine-and-method/.