Matiangai Sirleaf, Racial Valuation of Diseases, 68 UCLA L. Rev. __ (forthcoming 2021).
The Covid-19 pandemic has impacted all of us, but not all of us equally. Far from acting as the great leveller, the disease that itself does not discriminate has revealed and exacerbated startling health disparities across the United States and globally. The early disaggregation of data indicated that Covid-19 mortality rates were more than double in Black populations than in White populations in the U.S., and were one and a half times as high, nationwide, in Latinx, and Indigenous populations. Infection rates, by population group, were also higher. The disparities of the global spread added further complexities. Now, as the Covid-19 vaccine has been developed in record speed, the challenge of distribution must incorporate facts about public health disparities alongside questions of prioritization. Two big questions loom: how much do our concepts of distributive justice and global justice incorporate racial justice? And how much should they?
Matiangai Sirleaf has given us a vocabulary, and a theoretical framework, to grapple with these issues. In her forthcoming article, Racial Valuation of Disease, she examines both the hierarchical valuation of racial groups in the context of disease, and the distributional consequences of that valuation. In developing the concept of racial valuation, she borrows from frameworks developed within critical race theory (CRT) and Third World Approaches to International Law (TWAIL), such as racial capitalism, intersectionality, “whiteness as property”, “interest convergence”, racial stratification, neocolonialism, and racial empathy gaps. These concepts, pioneered by Cedric Robinson, Kimberlé Crenshaw, Cheryl Harris, Derrick Bell, Robert E. Washington, amongst others, point out how past acts of violence, such as slavery, colonialism, and Jim Crow, continue to manifest in facially neutral policies and apparently color-blind laws. A powerful inverse of the moral valuation demanded by the Black Lives Matter movement, the racial valuation of disease provides a background to Covid-19 that demands a close reading – and that should help to provoke an array of structural, institutional and intellectual responses.
A scholar of global health and international law, whose past work sought to deepen our understanding of state responsibility and epidemics like Ebola and cholera, Sirleaf here delves into present and past incidents of structural, scientific and medical racism, to explore the unequal impact of disease. Structurally, she notes the institutions, policies, and practices that account for the inequalities between and among racial groups, including geographical segregation – de facto not de jure, as we know, but what’s that to a pathogen? – alongside racial, gendered, and socioeconomic trends in high housing density, food insecurity, inadequate schools, inaccessible, inadequate or biased clinical care, public transportation reliance, high crime rates, and employment stressors like hazardous jobs (including essential work), an absence of sick leave or adequate health insurance, or unemployment. These known social determinants of health – the conditions in which people “live, learn, work and play” as the Centers for Disease Control and Prevention puts it – affect health risks and outcomes. And these determinants are shaped, as the World Health Organization has described, by the distribution of money, power and resources, across local, national and global contexts.
Sirleaf brings these structural causes – familiar to the public health literature and the field of health and human rights – in direct interplay with historical examples of scientific and medical racism. Sirleaf thus presents her readers with some awful truths about the overt medical racism that was popularized during spreads of leprosy, syphilis, smallpox, HIV/AIDS, and other diseases. While she notes that the worst excesses of such racism have been safely discredited – from eugenics, phrenology and other pseudoscience – she warns of its current return, through race-specific patents in pharmacogenomics, for example, or the rise of personalized medicine. Indeed, Sirleaf notes that the pathologization of Black or Brown “culture” with disease prevalence has resurfaced during Covid-19.
Tracking the distribution of disease by racial group is of course essential. But that distribution creates its own distributive effect, which Sirleaf’s article also addresses. She warns that the coding of Covid-19 as Black and Brown may limit the prospect of an empathetic, collective, corrective response, and may explain the otherwise baffling use of “white supremacy” paraphernalia – swastikas, Confederate flags, and nooses – in the anti-lockdown protests that have challenged Covid-19 mitigation responses. Moreover, Sirleaf’s structural framework helps to explain why the US Surgeon General acknowledgement of Covid-19’s disparate impact by race, when accompanied by an apparently benign request for communities of color to “step up and help stop the spread” of the pandemic is, when the far more hazardous structural causes are known but unaddressed, both affronting to such communities and ineffectual.
Sirleaf’s use of CRT and TWAIL scholarship help reveal how surface reforms may backfire, and how individualized, personal responses and reckonings to disease may be insufficient. In applying and extending these powerful concepts to the terrible pandemic that is currently resurging within the US, as well as to its spread outside of the country, and to disease burden and mortality gaps more generally, Sirleaf has provided us with a grasp of the problem and a language to address it. This is notable scholarship, not just for its assessment of the scale of the immediate problem, but for the cogent deployment of important strains of both US and international legal scholarship, which were developed within distinctive legal research fields.
When the Black Lives Matter protests ignited the country, it was impossible to ignore that the disease distribution of Covid-19 sat alongside police brutality and mass incarceration as an urgent and shameful racial injustice in the U.S. As the Biden-Harris Transition Team prepares its program for “building back better”, two of its four listed priorities are Covid-19 and racial equity. Sirleaf’s work helps to illustrate how these two priorities are necessarily interwoven, and how deepseated must be the efforts to confront them. Her readers will also learn, too, of the global priorities that must be established as a result.
Constitutional democracy is under threat worldwide, including in Asia itself. Witness the banning of the political opposition in Cambodia, the ongoing role of the military in Thailand, or the actual and threatened expansion of executive authority in the Philippines. These trends also parallel broader patterns of democratic backsliding or erosion across the globe. Identifying ways in which courts can effectively help counter these trends is thus of enormous value in 2020, and beyond.
In her important new book, Constitutional Statecraft in Asian Courts, Yvonne Tew provides just such an account: she argues that courts in Asia – and specifically in common law, South-East Asian countries such as Malaysia and Singapore — can and should play a greater role in both helping build and protect resilient constitutional democratic systems.
A role of this kind, Tew argues, is clearly desirable from a constitutional theoretic standpoint: building a successful democracy, according to Tew, depends more on the creation of effective institutions than individual ‘heroic’ political leadership; and courts can play a central role in the protection and creation of these institutions through appropriately robust but flexible forms of review.
Tew suggests that courts in common law Asia have the formal legal-institutional foundation on which to engage review of this kind: they have entrenched written constitutions, a history of (at least semi) independent review, and formal constitutional commitments to the separation of powers, rights, and the rule of law. To date, they have tended to exercise this authority in a quite restrained, deferential way. But Tew suggests that there are indications in both countries, and especially Malaysia, of a more robust approach to the judicial role.
One of the most important contributions of the book is to suggest a doctrinal toolkit for courts wishing to engage in review of this kind – a toolkit based on a purposive approach to constitutional interpretation or ‘construction’, proportionality reasoning and the ‘unconstitutional constitutional amendment’(UCA) doctrine. And Tew suggests that this toolkit must be exercised ‘strategically’ by courts, including with close attention to the timing of court decisions.
Tew’s account of historical constitutional trends in Malaysia and Singapore is also a distinct and valuable contribution to the field. In chapters 2 and 3 of the book, Tew provides a rich contextual and historical account that builds in extremely productive ways on the several excellent single-country case-studies on this topic.
All of these arguments make a serious contribution to existing comparative constitutional scholarship. It is notable that Tew goes further than many other leading scholars in this context in arguing for a role for courts in both democratic ‘hedging’ and building. She also goes further in linking purposive interpretation and proportionality analysis to these judicial projects. And she makes a persuasive case that these tools help provide both sufficient legal justification and flexibility needed for successful ‘constitutional statecraft’ by courts.
The book also leaves open questions for further reflection: first, are the tools Tew identifies as key tools of judicial statecraft – i.e. purposive interpretation, proportionality reasoning and the UCA doctrine, together with the careful timing of court decisions – ultimately necessary to successful judicial statecraft in all cases, or rather helpful tools that may increase its chances of success in some subset of cases? My own sense is that they may be more or less necessary for effective constitutional statecraft in Malaysia and Singapore, but not necessarily elsewhere. In some cases, textualism or pragmatism may be consistent with a form of democratic hedging by courts. And proportionality may increase judicial flexibility but is not required for it. The US Supreme Court is arguably the exemplar of the use of the ‘passive virtues’ for strategic ends, and yet it relies on a form of tiered scrutiny rather than any explicit proportionality-style analysis.
Second, how confident is Tew that the nascent trends she identifies of greater judicial assertion and adventurism are likely to last, especially in Singapore? Tew herself notes the dialectic or unsteady nature of change in Malaysia in the last few decades; and the intimations of change she notes in Singapore seem at best incipient. It may, therefore, be too early to say that there is nascent support within Singapore, especially for the kind of vision Tew articulates.
Ultimately, however, this is a work of scholarly statecraft: it aims both to persuade readers globally of the importance and lessons of these Asian cases for theorizing about the relationship between judicial review and democracy globally, and to persuade common law Asian judges to follow the path set out by Tew herself. And in that context, telling those judges they are already on the path set out in the book seems more than politic. It employs exactly the same kind of mix of principle and pragmatism Tew is calling for from judges.
We can only hope that, like Tew, they are up to the task.
In 2020, the World Bank published the 17th annual Doing Business Report (DBR), openly tying it to salutary reforms in the 190 nations the report evaluates across a range of regulatory arenas. Academic inspiration for the DBR is routinely linked to the “legal origins” argument which classically claimed that countries with common law legal heritage perform better economically—most acutely by favoring creditors and minority corporate shareholders. Together, the DBR and legal origins scholarship (LOS) have enjoyed a mutually-reinforcing success leading to thousands of academic citations and numerous induced reforms across the globe.
Yet, the success of the DBR/LOS juggernaut is matched by comparative law scholars’ equally vigorous critiques of its systemic deficiencies. New iterations of such rejoinders are recurrently juxtaposed with comparative law scholars’ longstanding lament regarding the marginality of their perspectives in many international reform agendas. For all the intellectual energy devoted to this debate over the past two decades, Dan Puchniak and Umakanth Varottil’s Related Party Transactions in Commonwealth Asia now stands out as the clarion critique of the DBR/LOS approach.
The title of the paper may not seem to promise earth-shattering revelations. Its particular subject, related party transactions (RPT), deals with transactions between a corporation and those actors who may have sway over its decision-making or privileged access to non-public information. Puchniak and Varottil question the DBR/LOS presumption that RPTs are inherently pathological and thus an example where “good” corporate governance is essential to protecting minority shareholders from expropriation (and, following the favored causal chains taken as truisms by many, more dispersed share ownership, better equity markets, and then all good things economic). The paper thus takes direct aim at the most influential academic work responding to first-generation critiques of LOS by Djankov et al., The Law and Economics of Self-Dealing (DLSS) which informs the benchmark RPT regime the DBR references—a benchmark which idealizes Anglo-American approaches emphasizing private enforcement and considers RPTs as inherently pathological.
The article begins by noting that the “Commonwealth Asia” nations score incredibly well on the DBR rankings, with Singapore traditionally taking the top spot and Hong Kong, Malaysia, and India not far behind. Yet, the authors could not find a single private action challenging an RPT in the modern history of Singaporean corporate governance. In tandem, Malaysia has been recently wracked by corporate governance scandals involving RPTs which would seem to undermine any rubric which scores it as possessing a globally-leading regulatory regime. Parallel issues are reflected in Hong Kong’s publicly-oriented enforcement regime, and India’s many RPT enforcement challenges.
What Puchniak and Varottil reveal is how this empirical dissonance illuminates the fundamental, if not fatal, flaws in the DBR/LOS methodology. This methodology, now replicated in numerous other studies, involves a survey containing a hypothetical with clear self-dealing and wealth-tunneling that asks corporate and securities lawyers in each jurisdiction questions regarding applicable RPT regulations. These responses are then reduced to an averaged numerical score. What this method leaves out, and which is at the heart of any coherent functional understanding, are any questions regarding enforcement. It is simply coding the formal presence of laws. Such formalism accounts for the glaring mismatch between the DBR/LOS presumptions about good RPT regulation and the realities of the enforcement mechanisms in the Commonwealth Asia countries which it scores so highly.
The authors go beyond this general indictment of conceptual formalism to unpack the more specific presumptions which characterize the DBS/LOS treatment of corporate governance. The article notes three areas of complexity that are assumed away: 1) regulatory complexity (including enforcement norms), 2) shareholder complexity (including family and state-owned-enterprise (SOE) ownership, each with meaningful intra-and inter-jurisdictional heterogeneity), and 3) normative complexity (claiming most controversially that RPTs are not per se pathological and thus that greater formal strictness in RTP enforcement can lead to negative marginal effects). Here the article addresses the rapidly-improving set of empirical studies which have made comparative corporate governance so exciting as it moves beyond past pathologies of formalism and cultural hyper-determinism—now acknowledging the same complexities which have become de rigueur for any meaningful domestic study of corporate law. Puchniak and Varottil note that the DLSS piece which directly inspired the current DBR RPT evaluations contains only a single footnote where the authors admit that enforcement is not measured and likely “matters as much or more.”
For example, particularly interesting are the challenges high levels of foreign incorporation produce for Hong Kong and, increasingly, Singapore, which place controlling shareholders (largely in mainland China) beyond the practical reach of regulators. Additionally, both Malaysia and India rolled back anti-RPT reforms because of the consequences of their overly-strict approaches. Each such revelation demonstrates how little coding the presence of formal law achieves, effectively misleading far more than it enlightens by drawing attention away from where the regulatory action genuinely lies. And such misdirection shows how the a priori bias against public enforcement inherent in the DBR/LOS position further distorts the entire enterprise. Their conceptual critique inspires great confidence—if not certainty—that the same issues would arise in different configuration for the rest of the 190 nations so surveyed.
There are aspects of Puchniak and Varottil’s analysis that some might find questionable. They often elide divergence in US and UK regulatory approaches in their descriptive categories. Their claims as to the desirability of conglomerate corporate ownership are still controversial. But disagreement over any particular detail does not preclude agreement with how clearly they lay bare the methodological deficiencies of the DBR/LOS approach.
What remains unsaid in the article is why such issues with formalism can lead to such glaring empirical mismatches while also reaching such global levels of academic and political influence. Puchniak and Varottil do not fully address this issue, but it is implicit throughout that they have a broader concern regarding how the DBR/LOS approach impacts effective reform. Notably, Kenya recently leapfrogged Singapore in the rankings to claim the #1 spot, while Malaysia continues to enjoy its top five ranking even after its various scandals. This result stems from the fact a country like Kenya can simply copy formal laws on the terms the DBR favorably evaluates without enacting any enforcement reforms. This leads to not only typical iterative observer-observed problems but also very real pressures on countries seeking higher foreign direct investment to under-invest in genuinely productive reforms.
Perhaps cyclical critique could be attributed to the normal healthy progress of academic knowledge. The DLSS article generated its global survey by engaging the most notable critique of first-generation LOS scholarship in Holger Spamann’s “Law and Finance” Revisited. But such response was intra-methodological — improving the survey while leaving the fundamental issue of formalism untouched. Similarly, while most original LOS claims have been subsequently scaled back or qualified, many who still work within the LOS paradigm often resort to reductio ad absurdum conclusions that “history matters” for legal systems with colonial histories while still trying to find causal levels among hugely diverse regulatory ecologies.
But Puchniak and Varottil’s findings preclude any “normal” academic explanation for the persistence of the LOS approach and require acknowledging the sociological realities that give LOS its zombie-like resilience. Here their work resonates with the demand-side analysis by Terrence Halliday and Bruce Carothers’ regarding global insolvency reform as to how such reductive approaches resonate with the imperatives of international institutions. Such institutions take as predicate the assumption that identifying and encouraging universal best practices is core to their missions while also providing politically expedient cover for national regulators seeking to depoliticize their agendas. Indeed, NYU’s ‘Indicators Project’ demonstrates the seductive quality of problematically coded indical rankings across a range of fields. These indices create the possibility for a broad spectrum of research with putatively global impact that is cheap, validates strong ideological priors, and makes the translation of such priors into universal policy suggestions powerfully persuasive exactly because of their very formalistic superficiality.
All of which Puchniak and Varottil expertly reveal. The genuine drivers of RPT enforcement, often informal and path-dependent, are hard to measure using survey data. Their work demonstrates how the common methodological toolkit of modern economists is simply irredeemably insufficient to carry out such research without interdisciplinary collaboration, especially at any level of conceptual formulation or data collection. This insufficiency is far more severe than routine cautions about epistemological humility and the pitfalls of arguing for massive, costly legal reforms based on studies that bury their size effects behind the fetishization of significance tests.
One could imagine a claim being made that replicating their empirical excavation of Commonwealth Asia’s RPT governance would be too costly for a single academic study to conduct on a global scale. But given the resources of the World Bank, such a claim is hard to credibly countenance. If the topic is indeed of such global import, then requisite resources should be marshaled for its study rather than producing empirically groundless results for their own sake.
Perhaps this seems too aggressive a conclusion. I would simply advise any non-comparative legal scholar to consider a reality, if it is not one they already face, where the most powerful actor influencing reform in their home jurisdiction formulated and attempted to actuate knowledge produced in this manner about their field of legal expertise. Place oneself in the position of legal scholars who find themselves in a context where the influence of misplaced faith can be so overwhelming. In a world where reactionary populism is increasingly posed as the alternative to scientific expertise, such a reality may soon face even those jurisdictions once presumed to be global exemplars who abused the veneer of comparative law to exercise self-affirmation rather than self-reflection.
The constitutional politics of gender equality are never static – the pendulum appears in constant motion the world over, and no less for the US. As protections of equality and non-discrimination are now given in all but three of the world’s constitutions, and as women’s rights are given direct expression in 24, the constitutionalist promise of gender equality has appeared to be on a global upswing. And yet these trends are not everywhere the same. Indeed, with the tributes flowing in for the late, great and notorious Justice Ruth Bader Ginsburg last month, both for her legacy to global constitutionalism as well as to US constitutional law, the robust protections of gender equality in the US seem ever more fragile. It becomes vital to understand that legacy, and other feminist achievements, outside of US Supreme Court doctrine.
Enter Julie Suk’s wonderful new book, We the Women: The Unstoppable Mothers of the Equal Rights Amendment. In this carefully researched and extraordinarily well-timed intervention, Suk documents the historical trajectory, and the current import, of the Equal Rights Amendment (the ‘ERA’) in the US. The amendment requires that the “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”. By 1977, a total of thirty-five states had ratified the ERA, falling short of the three-fourths of the states prescribed by Article V. Yet despite this failure, the ERA (and with it, the second-wave feminist movement), received “de facto” support via constitutional interpretation of the Fourteenth Amendment. The constitutional politics, however, does not end there. In recent years, a wide range of feminist supporters have worked to formalize – and remove the judicial authorship of – this protection. In January 2020, after intense mobilization of feminist advocates in many places, Virginia became the 38th state to ratify the ERA. The constitutional status of the ERA is now a legal puzzle before several courts, who must address the question of both the legal effect of its apparent rescission by several states, as well as the status of its seven-year legislative deadline for passage.
The puzzle is deeply controversial, even as it is apparently moot. As Suk recounts, the National Archives and Records Administration refused to publish the ERA as the Twenty-Eighth Amendment to the US Constitution, on the advice of the Department of Justice Office of Legal Counsel (OLC). The OLC opinion, adopted by the Trump Administration, determined that the ERA had expired on March 22, 1979, given its explicit seven-year deadline, and that it could not be revived. Litigants are now contesting that question, both as ERA proponents (e.g. Equal Means Equal in Massachusetts) and opponents (e.g. Virginia’s and others lawsuit in DC). For many others, however, the question is unnecessary and irrelevant. Equal rights doctrine has found a persuasive foothold in the US since Ruth Bader Ginsburg’s winning brief in Reed. v. Reed and the later Fourteenth Amendment decisions by the Supreme Court.
Suk takes the long-term view, however, and notes the risks, perversions, and missed opportunities spelt out by resting on such a court-centric defence. In particular, she notes the relevance of the #MeToo movement, and the newer positions that have helped emphasize the intersectionality of gender with race and other status inequalities, as well as the newer stakes of affirmative action, reproductive rights, transgender rights, equal pay, and measures to end violence against women. She also notes the new drafted language for an equality amendment that has been offered by veteran advocates, encompassing both US developments and insights from international and comparative human rights law.
Suk has written We the Women for both lawyers and non-lawyers and she describes the promises of the ERA in highly accessible terms. She argues that its passage would boost women’s empowerment, particularly for mothers and mothers-to-be, and would help shore up efforts by Congress to affirmatively support gender equality, both at home and in the workplace. She describes the ways in which such an amendment would help parents with pregnancy, childbirth, and caregiving responsibilities, issues which, in the months since the book has appeared – as the coronavirus pandemic and lockdown have occurred – scream at many families in America daily, as with those elsewhere. She suggests that the passage would help include women as constitutional framers and authors, rather than leave the past (all-male) House Judiciary Committees or courts with the final word on equality and rights. By collecting the notable statements and motivations of the diverse range of women who have campaigned for the ERA, Suk also notes how the amendment would help present an understanding of equality for women of color, women with disabilities, transgender women, and immigrant women, and introduce more inclusive visions of gender, racial and economic justice.
This book thus provides a deft introduction to the contemporary context of the ERA in the US. Its historical references go yet deeper. Suk draws a comprehensible line between the early advocates of the ERA idea in the US (almost 100 years ago, in 1923, after the successful passage of the Nineteenth Amendment’s guarantee of women’s right to vote) and its defenders today. She does this without simplifying or sugar-coating that history, when ERA proponents adopted the singular perspective of white women of a particular class. In the early parts of the book, she describes the earlier scepticism of the “so-called equal rights amendment” by working women’s advocates, who saw minimum wage and other special labor protections under threat. In another set of chapters, she describes the later opposition by women in the 1970s, now made famous by a Hulu series which prefers to document the internal disagreements between women, rather than the much greater obstacles presented by men, or by the constitutional amendment requirements themselves. Moreover, she draws out a defense of reproductive health care by moving beyond the clearly important Supreme Court marker of Roe v. Wade into other battles and other stakes, which are related of course but deserve their own telling and accounting.
Suk is a comparative constitutional scholar, and her careful historical search was inspired, as she notes, by constitutional amendments abroad. These amendments, variously affirming equality of sex or gender, have helped created a transnational field of gender and public law, and the notable trends towards textual amendment cited above. Nonetheless, global constitutionalism has faced many challenges in the last decade, with numerous instances of backsliding and backlash. Since the late 2000s, powerful state-sponsored campaigns or other populist movements have adopted anti-feminist, anti-LGBT, or “anti-gender ideology” framings in Europe, such as in France, Germany, Italy, Hungary and Poland, and Latin America, such as in Colombia and Brazil. There are also homegrown examples in the US, where emotive anti-feminism has helped deflect or distort attention from other grievances, and worked to appease certain religious groups. These comparative developments give some pause for seeking any singular or straightforward triumph from ERA passage.
These lessons from abroad supplement the lessons of history. Suk makes a convincing case for Congress to declare the ERA as valid “whenever ratified” by three-fourths of the states, and thus retroactively remove or make redundant the seven year time limit that was imposed on the original proposal. She makes this case, based on the substantive benefits described above, as well as the peculiarity of the legislative seven year “poison pill” and its pernicious effect in burying amendments through the tactic of delay. It boils down, she writes in a gripping Epilogue, as to “whether or not the ERA is worth fighting for” (p. 181). Yet as the US awaits an election in which basic rule of law norms are not assured, one wishes the case against such a re-reading had also been considered by Suk’s reliable legal eye. The process checks of US constitutional democracy may be more important than ever, and the explanation of why a legislative deadline should be put to one side, and yet others safeguarded, is a highly generative question.
Whether the answer is found through a deeper engagement with global constitutionalist norms or through highlighting America’s own contribution to them (in terms of the support for gender equality and non-discrimination, self-government, women’s and LGBTQ human rights, or another basis), the case for declaring the ERA valid should be one that scholars everywhere should understand. The politics of gender equality is now, almost inevitably, a constitutional politics, and Suk’s book provides a clear explanation as to why the pendulum must swing so high for amendment in the US.
Marketa Trimble, The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies
, 23 Lewis & Clark L. Rev.
501 (2019), available at SSRN
Intellectual property rights are territorial. Infringement claims—of unauthorized copying, making, selling, using—involving patents, copyrights, trademarks, or trade secrets are extraterritorial. Courts are also territorial, and their jurisdictional reach often limited by geography. So, what happens when a successful intellectual property claimant seeks to remedy the wrong in the courts? How do extraterritorial harms map onto the territorial limits of courts and rights? In The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies, Professor Marketa Trimble offers a powerful analytic assessment of these issues, introducing new conceptual vocabulary and policy solutions. For innovativeness in framing and addressing an issue, Professor Trimble’s article is one that I like lots for the reasons I jot below.
To concretize the issue, Equustek v. Google, [20180 10 W.W.R. 715 (Can.)], provides the exemplary case. In Canadian court, Equustek alleged that Datalink, a rival computer hardware company, had stolen its trade secrets. When Datalink refused to comply with a Canadian court order, the company’s corporate officer fled the country, never to be apprehended. Equustek then sought an order in Canadian court against Google, seeking to have the company remove Datalink from all global search results. The Canadian court ordered this global injunction. With this example, we see a complex dynamic of intellectual property litigation across global boundaries.
Territorial courts adjudicating extraterritorial harms issue what Professor Trimble calls “extraterritorial remedies.” These are remedies, as the article defines, which “reach beyond the territorial scope of the underlying claim.” These extraterritorial remedies give rise to the “territorial discrepancy,” referred to in the article’s title. This discrepancy arises because the unlawful acts may extend beyond the boundaries of the infringing act. Professor Trimble gives the example of the unauthorized reproduction of a DVD that is made available on the Internet and downloaded across the globe. A copyright owner might bring her claim in a United States court and seek an injunction against distribution on the Internet. As Professor Trimble summarizes this simple example: “the injunction has global effects and the territorial scopes of the claim and the remedy overlap but are not identical–which results in a territorial discrepancy.”
Territorial discrepancy is closely related to cross-border remedies, which always reach beyond the territory of the court issuing the remedies. But cross-border remedies do not result in a territorial discrepancy because cross-border remedies follow the territorial scope of the claim. The two are identical in two cases identified by Professor Trimble. The first is when remedies arise from claims that have been based on the laws of countries in addition to the forum country and cover the jurisdiction of the other countries. The second is remedies arising from the forum country’s laws that apply extraterritorially, where the scope of the remedies corresponds to the extraterritorial scope of the law. A territorial discrepancy arises when the territorial scope of the remedies extends beyond the scope of the laws giving rise to the claims.
Professor Trimble provides many examples of territorial discrepancies across many jurisdictions. The trend is towards an increased prevalence of territorial discrepancies. Awards of foreign profits that can be traced to domestic acts of copyright infringement provide one example of the scope of the remedies exceeding the scope of the legal claim. Another arises from infringement claims involving distribution on the Internet, to return to Professor Trimble’s original example. A third example is the use of domestic remedies to compensate for or punish infringements of foreign copyright or patent. This third type of discrepancy arises from the availability of domestic statutory or punitive damages, enhancements that may not exist under foreign law.
Whatever the type of the discrepancy, the source comes from how claims are brought to a court. Considerations of personal and subject matter jurisdiction may shape which of many territorial courts is the appropriate forum for a dispute. Once an appropriate court is identified, plaintiffs must tailor the claim to the applicable law, including the relevant choice of law provisions. Furthermore, there are important differences across jurisdictions on how intellectual property rights are secured which affect whether a claim can be instituted. Some jurisdictions allow claims for unregistered copyrights, for example, and jurisdictions differ as to recognition of rights in designs or trademarks based on formalities with the relevant intellectual property agency. Differing rules of evidence will also influence the choice of adjudicative court and the remedies available within that court’s jurisdiction. Territorial discrepancy arises from a mismatch between remedies and claims as substantive and procedural laws vary across national courts.
Professor Trimble identifies a subtle but challenging problem. Territorial discrepancy raises concerns over national sovereignty and the exportation of intellectual property rights. These concerns highlight how, despite multilateral and bilateral treaties, intellectual property laws are heterogeneous. The Hague Judgments Convention provides some potential resolution by creating uniform global standards for remedies. Unfortunately, as Professor Trimble notes, the treaty excludes intellectual property from its coverage due to severe disagreement among intellectual property owners and other constituencies over what the uniform standards should be. Because the treaty offers no solution, Professor Trimble urges courts to resolve the discrepancy by either adjusting the scope of the remedy to the scope of the underlying claim or adjusting the scope of the claim to that of the available remedies. Neither of these are satisfactory because each would encourage intellectual property owners to pursue non-extraterritorial cross-border remedies to avoid the limiting moves of the court.
Professor Trimble’s ultimate recommendation is to have courts address territorial discrepancy through an individualized approach. In this case of injunctions involving unauthorized distributions on the Internet, individualization can include use of geolocation technologies to place geographic limits on access. Such highly individualized decision making requires consideration and prediction of policies in foreign jurisdictions that might limit enforcement of the remedy. In Equustek v. Google, the example case discussed at the start of this jot, the US court refused to enforce the Canadian court’s worldwide injunction against Google. When the plaintiff returned to the Canadian court with US court’s refusal, the Canadian court in turn refused to limit the injunction. Professor Trimble suggests that courts need to be more pragmatic in the scope of their remedial orders.
In Professor Trimble’s article, the dynamic of global intellectual property litigation gives rise to the phenomenon of territorial discrepancy. Absent a heroic treaty, only the pragmatic considerations of a judge can avoid this discrepancy. Professor Trimble cuts through a mass of complex, interacting legal materials to identify a subtle, and seemingly esoteric, problem. In turn, she offers a well-thought out and reasoned response that courts may not be ready or able to adopt. But this reluctance does not reflect a discrepancy of theory and practice. Instead, it illustrates the further complexities of global intellectual property litigation one which Professor Trimble offers a masterful perspective.
Cite as: Shubha Ghosh, Recognizing and Correcting a Discrepancy
(September 21, 2020) (reviewing Marketa Trimble, The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies
, 23 Lewis & Clark L. Rev.
501 (2019), available at SSRN), https://intl.jotwell.com/recognizing-and-correcting-a-discrepancy/
Duncan Ivison’s Can Liberal States Accommodate Indigenous Peoples? opens with the following questions: “Can liberal democracy accommodate the claims of Indigenous peoples? More precisely: can it do so justly?” (P. 12.) Ivison’s text is a rigorous and elegant response to these questions and essential reading for all who grapple with the circumstances of Indigenous peoples in contexts of “settler colonialism.” (P. 13.)
In the first chapter, Ivison identifies two key features of this form of colonialism. First, it involves “seizure and control of territory” that is justified by reference to “ideologies of civilizational and racial superiority and the denigration of Indigenous political institutions, philosophies, cultural practices and ways of life.” (P. 13.) Second, this process of “political domination and dispossession of territory” is “ongoing” and not a mere remnant of history. (Pp. 13-14.)
What, then, does Ivison mean by liberalism? He situates his arguments within “egalitarian liberalism”—a strand of liberal theory associated with John Rawls—which Ivison describes as a “cluster of arguments [that] seeks to reconcile freedom with social equality in both the political and economic sphere.” (P. 15.) For Rawls, the concept of “justice as fairness” provides the standard for assessing whether “the main social and political institutions of society” distribute goods fairly, as a procedural matter and as a matter of outcomes. (P. 17.) Ivison notes that in settler colonial societies, Indigenous peoples suffer from severe forms of social and economic injustice (Pp. 19-20) that “cry out for distributional redress.” (P. 20.)
Ivison adds structural considerations to this distributive conception of fairness and specifies their significance for the circumstances of Indigenous peoples. He argues that the background conditions of society—“the institutions, norms, practices and material conditions” that “enable and constrain individual and collective action”—can give rise to harms that Iris Marion Young calls forms of “structural injustice.” (P. 17.) These harms arise when background conditions are configured in ways that prevent individuals from exercising “their effective political agency.” (P. 19.)
In the context of settler colonialism, this focus on political agency is especially important since Indigenous peoples in liberal democratic states are “polities” or “generative sources of normative order.” (P. 16.) Settler colonialism denies the political agency of Indigenous peoples through ongoing processes of domination and dispossession, which efface Indigenous peoples’ status as polities. As a consequence, the legitimacy of the state in liberal theory “as the apparent protector of equality, freedom and toleration,” (P. 16) is put into question.
With these theoretical foundations established in the first chapter, Ivison turns in chapters two and three to assess whether liberal multicultural accommodations or aboriginal rights are adequate responses to the claims of Indigenous peoples.
In chapter two, Ivison argues that liberal multiculturalism aims to advance the universalist liberal values of “equality, autonomy, toleration and equal respect” (P. 23) and to “transform the identities and practices of both minority and majority groups, in line with liberal democratic norms of anti-discrimination, equality and basic human rights.” (P. 23.) For Ivison, this stance commits liberal multiculturalism to a “rich sense of equality,” (P. 25) according to which a “societal culture” (which he defines as “a territorially concentrated culture, centred on a shared language used in a wide range of societal institutions in both public and private life.” (P. 27.) that is dominant in a given context can create inequality by making it difficult for minority groups to sustain their cultural practices. (P. 26.) In response, multicultural rights—including rights to self-government and language rights—aim to protect “the structure within which people exercise their freedom and through which they make sense of the world.” (P. 27.)
Yet insofar as liberal multiculturalism assumes that the state has the authority to grant “recognition to a minority group’s claims for self-government or autonomy” (P. 28), the theory runs into problems when it is applied to Indigenous peoples. Ivison notes that “Indigenous sovereignty is an assertion of autonomy that is not dependent on the grant of that authority from any other entity” (P. 29) but rather “persists alongside that of the liberal state.” (P. 29.) This form of “normative pluralism” (P. 29) can call into question the state’s authority to recognize multicultural claims. And this challenge shapes the understanding of Aboriginal rights that Ivison articulates in chapter three.
Ivison claims that if “Indigenous peoples were sovereign and self-determining at the time of settlement, then Crown sovereignty can only be reconciled with their sovereignty through some mechanism of consent, or at least through means consistent with their freedom and equality.” (P. 36.) In settler states, this did not happen. Nonetheless, Ivison argues, this “ideal” (P. 36) can guide our understanding of the interests that Aboriginal rights aim to secure. These comprise “a bundle of specific rights to do with control over their territories and the various activities that occur on them; with political rights of self-government, and with their rights as citizens of both Aboriginal nations and the wider political community in which they reside.” (P. 36.) These rights place others under a duty (P. 34) to “protect and promote the basic interests of Indigenous peoples, both individually and collectively.” (Pp. 36-7.)
It seems that for Ivison, Indigenous sovereignty can in this way be accommodated within a liberal theory of Aboriginal rights: these rights aim to empower “Indigenous polities to address the social and economic disadvantages they continue to suffer from.” (P. 41.) Yet Ivison identifies a remaining, thorny question: if these rights are “grounded in liberal conceptions of the person and political institutions,” how can they be reconciled with distinctively Indigenous “political theories and institutions”? (P. 42.) The final chapter of Can Liberal States Accommodate Indigenous Peoples? answers this question.
In chapter four, Ivison defines a normative order as “a cluster of values, beliefs, and legitimation ‘narratives’ (religious, cultural, moral, political and legal) that people appeal to in order to justify (and contest) the practices and institutions they are both subject to and help constitute.” (P. 50.) A liberal state, Ivison notes, is comprised of a constellation of normative orders, and the challenge for liberal theory is to reconcile this “plurality of normative authority … within a single political entity.” (P. 52.)
The key question, then, is: How can power in a settler colonial state be exercised in ways that members of the plural normative orders within the state can (in Rawls’ terms) “reasonably be expected to endorse”? (quoted at P. 53.) Ivison’s response is to require that political decisions “be justified to citizens” on the basis of “reasons that can be endorsed from a range of different perspectives and that emerge from the bottom up—through ongoing, historically situated, multi-perspectival public reasoning—as opposed to ‘top down’ state-based reasoning.” (P. 54.)
Ivison provides an example of this kind of “multi-personal” reasoning (P. 54.) when he analyses the 2017 protests of the Standing Rock Sioux Tribe. These protests aimed “to uphold” the Tribe’s “treaty rights and block the US government from allowing an oil pipeline to run across their lands and near to rivers they depended on for a range of purposes.” (P. 57.) Ivison argues that in analyzing this kind of action, we should consider issues that would be salient to a diversity of perspectives. These would include: the existence of a treaty right and the importance accorded to the land and rivers within the Indigenous normative order; the possibility that denying access to the land would impose severe harms on individuals who are not members of the Indigenous group; and the relevant colonial history of dispossession. (P. 57.)
Moreover, Ivison argues for “institutional innovation” that will create “the conditions in which these complex and sometimes conflicting claims can be discussed and mediated.” (P. 57.) In settler colonial states these innovations would involve developing: “ways of deliberating about the past democratically;” (P. 57) the capacity “to see the world from the perspective of another”; and “a shared set of practices and reasons for going on together.” (P. 58.) When seen in in this light, Indigenous movements provide “an extraordinary resource for free societies,” as they “expose enduring injustices” and “propose new ways of addressing them.” (P. 58.)
For those of us who share Rawls’ understanding that the essential content of a constitution includes public reasons that “all citizens as free and equal may reasonably be expected to endorse,” (quoted at P. 53) Ivison lays down a challenge: how can we innovate so that constitutions and the procedures of constitution-making facilitate multi-personal public reasoning? The institutional and doctrinal answers we provide may also partially respond to the crucial question posed by the title of Ivison’s masterful text.
Stephen Gardbaum, Comparative Political Process Theory
, 18 Int'l. J. Const. L.
__ (forthcoming, 2020), available at SSRN
The United States is a democracy in crisis. Deep-seated institutional racism and ongoing systemic threats to the political process in the United States demand our active attention. The challenges to American representative democracy that John Hart Ely outlined in Democracy and Distrust—voter suppression and systematic political disadvantage due to discrimination—and his arguments for remedial representative reinforcement seem more salient than ever. But what of the global crisis? Democracies around the world are faltering. Do Ely’s insights have purchase for Poland or Hungary, South Africa or Turkey? Stephen Gardbaum persuasively argues that they do, albeit after some elaboration and refinement, in his new piece, Comparative Political Process Theory, forthcoming this winter in the International Journal of Constitutional Law. (The article will also be the focus of a set of ICON Debate! commentaries, published in the same issue.) Using Ely as inspiration, Gardbaum provides a new and broader framework for identifying and categorizing political process failures in representative democracy, and explores a wider set of remedies for these breakdowns, including—though not limited to—judicial review.
A political process failure is the violation of core democratic procedural values or principles either by “delegitimiz[ing] the relevant process” through a singular grave occurrence, or by “systematically undermin[ing]” them over time. (P. 33.) And to ground the analysis, Gardbaum identifies a minimum slate of these core democratic procedure values, including robust political competition and contestation; pluralistic governance; differentiated institutional roles; accountability; political equality among citizens; and representation.
As Gardbaum notes, Democracy and Distrust is “self-consciously parochial” (P. 1) and focuses only on specific failures of American representative democracy—efforts to prevent political change through suppression (of voices or votes) and systematic disadvantage in the political process for disfavored minority groups. But relying on the expanded list of democratic procedural values and taking a comparative lens, Gardbuam identifies many other political process failures. In addition to threats to free and fair elections and to the lawmaking process or processes flagged by Ely, Comparative Political Process Theory (CPPT) directs attention to the “institutional composition of the constitutional system”; the “modes and methods of executive accountability and oversight in between elections”; and “the rules and procedures of the various branches of government.”
This expanded set of process failures is supported by a variety of concrete examples, and Gardbaum draws on his own and others’ work in detailing the dispiriting stories of democracies in crisis: challenges to independent institutions of accountability in South Africa (the National Prosecuting Agency) and to the independence of the judiciary in Hungary, Poland, and Turkey; the “weaponizing” of the legislature in South Africa to protect and insulate President Zuma from political accountability, and Boris Johnson’s decision to prorogue Parliament in the United Kingdom; and the undermining of the process of legislative deliberation by efforts to push through fast-tracked or last-minute bills in the Israeli Knesset (tax) and the U.S. Congress (tax), as well as the wide-ranging legislative gamesmanship in Poland, from agenda manipulation to shifting meeting times and locations.
These failures are not all narrowly procedural; some are “impermissible because of their intended or likely effects on the political marketplace” (P. 35), thus CPPT straddles the procedural/substantive divide. In so doing, its capaciousness has implications for remedies—and the nature of judicial review. Gardbaum is not proposing that CPPT be seen as the only justifiable rationale for judicial review, and he leaves open the questions of whether or why purely substantive judicial review might also be beneficial. Similarly, he does not present CPPT as a theory of judicial restraint; in fact, “it can call for robust interventions where most courts have feared to tread.” (P. 40.) As one example, he highlights South Africa, where robust Constitutional Court review of the procedures in the National Assembly was controversial. By framing these decisions in light of CPPT, they can be understood “less as judicial overreach violating the separation of powers than as judicial protection of it.” (P. 33.)
Indeed, the variation in types of process failure may call for different measures of judicial review, from pure procedural review to semi-procedural review, in which the enactment process of a legislative output “may be relevant in determining [its] substantive constitutionality.” (P. 28.) And in some contexts—such as when it is functioning to “make the process work the way it is supposed to” (P. 39), CPPT will necessarily function as a weak-form theory of review, “as its focus on remedying process failures of various kinds leaves open a broad range of outcomes that the political institutions may legitimately pursue.” (P. 35.) Again, the South African experience gives context: the full story of holding President Zuma to account included an active and independent media and the investigations of the Public Protector, the chief anti-corruption official.
In this article, Gardbaum adds his voice to the academic chorus calling attention to the steady dismantling of the structures and processes of constitutional democracy around the world. His efforts provide theoretical heft and normative justification to the work of constitutional courts that are trying to stem this tide. In this, as he acknowledges, his project dovetails with the work of law-of-democracy scholars, particularly Sam Issacharoff’s Fragile Democracies. That book, published in 2015, looked at the role of constitutional courts in emerging or weakened democracies in Eastern Europe, Africa, and East Asia. But as Gardbaum’s project highlights, we are all fragile democracies now.
Did you know that only two beverages, water and milk, were allowed during the recent impeachment trial at the Senate? Iselin Gambert would be unsurprised by the sight of senators gulping down glasses of milk while considering whether the President should be convicted of treason, bribery, or other high crimes and misdemeanors. Indeed, her fascinating article, Got Mylk?: The Disruptive Possibilities of Plant Milk, tells you everything you always wanted to know about the social and legal meaning of milk in the United States and the European Union, brilliantly dissecting the ongoing battle over the use of the word “milk.”
Plant milk has rapidly grown in popularity among consumers in recent years while cow’s milk sales have languished. Yet, in both jurisdictions, the word milk is narrowly defined as the mammary secretion of an animal. In principle, it cannot be used to label oat, rice, soy, and other plant-based drinks. As Gambert notes, “[d]espite the fact that plant milk has been called ‘milk’ for thousands of years by cultures across the globe, dairy milk advocates have been waging a war against plant milk for the last several decades, fighting legal, legislative, regulatory, linguistic, and cultural battles over not only the very word ‘milk’ but also over the cultural space it occupies.” In 2017, Wisconsin senator Tammy Baldwin introduced the Dairy Pride Act, which would update the U.S. Code’s section on “misbranded food” to prohibit plant-based products from using terms such as “milk,” “yogurt,” or “cheese” on their labels. The same year, the European Court of Justice ruled that plant-based products are prohibited from using the word “milk” in their labels or marketing.
While this transnational convergence may appear to be a futile linguistic fad, Gambert emphasizes that American and European law share a long history of supporting the dairy industry in a way that is connected to the “exploitation and oppression—of women, people of color, and nonhuman animals.” She points out that, in both regions, animal milk has long been used a tool for patriarchy to exploit and discipline the female bodies of cows and women. She emphasizes that milk is an intense site of racial oppression—the majority of the world’s population is unable to digest cow’s milk and yet it is ubiquitous, highly subsidized, and heralded as nature’s perfect food. Whites of northern European descent are the most likely to have the ability to digest milk, explaining, in part, why milk-drinking is connected to “a particular form of institutionalized white dominance.” Cows’ milk has become a symbol of our current political moment—both in the United States and in Europe, it is the drink of choice for the alt-right in virtue of its association with white supremacy.
Gambert offers an ingenious solution to the linguistic dispute haunting legal and social debates. Is the word “milk” with an “i” worth fighting for, she asks. A single letter could be the answer—plant milk producers and advocates should simply replace milk with “mylk” with a “y.” A “whimsical” and “creative” word like mylk would assuage dairy producers’ concern that some consumers are confused by the label “milk,” while advancing the disruptive potential of plant foods by avoiding milk’s sinister associations. While she notes that this “verbal activism” cannot by itself solve the broad underlying political and social issues, which would require questioning American and European food practices in relation to gender, race, and species inequalities, embracing “mylk” may present “an opportunity to showcase to consumers a more intentional and empowered choice.”
What about meat, you may ask. Over the last year or so, haven’t we witnessed a similar battle over what can be called meat? Much like milk, meat labeling has become a central site of social, political, and legal contestation, opposing the livestock industry to animal rights and plant food advocates. In response to the rise of plant-based meats (and the impending possibility that cultured meat may enter the mainstream soon), about half of the American states have either enacted, or are considering, legislation restricting the word “meat” to the flesh of animals, sometimes backed by criminal sanctions. Similarly, the European Union and some of its member states have moved to ban the use of the word meat to designate plant-based foods. Would a single letter make a difference here too? Should plant food advocates embrace “meyt” to dissociate themselves from the hyper-masculinized and speciesist tropes invoked by the champions of “real meat?” I look forward to reading what Gambert has to say about these developments in future work.
Editor’s note: For a previous review of this article see Ruthann Robson, Equality at Breakfast: Confronting the Patriarchal Whiteness of “Dairy Pride”, JOTWELL (June 11, 2019).
A general consensus has formed that the status quo approach to the current refugee crisis isn’t working, even if there is little agreement on an alternative. UC San Diego sociologist David Scott FitzGerald’s excellent new book, Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers, is the latest academic press book by a social scientist (following, for example, Alexander Betts and Paul Collier’s Refuge) to explain what’s wrong with the global institutional framework for refugees and to propose a better way.
Over eleven chapters, FitzGerald presents a trove of evidence showing how many Western states use law and policy to deter (or simply shut out) would-be asylum seekers. These legal policies creatively flout the spirit of international law, even as they walk a fine line between formal compliance and violation. FitzGerald argues that, whatever their legality under international or domestic law, these non-entrée policies, what he calls remote controls, violate principles of humanitarianism. He therefore argues that civil society—including NGOs, journalists, lawyers, academics, and other citizens—should mobilize to end them. Refuge Beyond Reach is an important contribution to the ongoing conversation about how the existing global international and domestic framework is addressing (and is perhaps responsible for) the current crisis.
Perhaps the book’s primary contribution is identifying and analyzing a typology of these migration remote controls. Refugee-destination states use remote controls to prevent migrants from legally claiming asylum by preventing them from reaching their ports, shores, or other borders. FitzGerald uses medieval-era architecture metaphors for these five methods of remote control: cages (techniques, such as camps or military force, which keep migrants in a certain place); domes (restrictive visa policies that keep migrants from flying into the country without prior permission); moats (maritime zones in which the military intercepts approaching vessels before they reach the shore, or even territorial waters); buffers (adjacent countries or territories that agree to hold migrants to prevent them from reaching the border); and barbicans (special legal zones on the perimeters of a country that limit asylum rights). Each of these devices is designed in a way that flouts the spirit of international migration law—the 1961 Refugee Convention and its 1967 Protocol—while arguably meeting most or all of its formal requirements.
One mark of a good analytical framework is how well it explains future events. FitzGerald’s framework has already proved useful for analyzing policy developments since the book’s publication. The remote control now making the biggest headlines in North America is the so-called “Migration Protection Protocols” (MPP) (also known as “Remain in Mexico”). Refuge Beyond Reach does not address that program, as the book was published shortly after the MPP was rolled out in early 2019. (FitzGerald does briefly cover a similar, ad hoc practice from the 1980s. He also examines how Canada implemented a “Remain in the U.S.” program in 1987; the threat to waiting asylum-seekers there was not violence from gangs, but deportation to their home countries by U.S. officials.) MPP requires asylum-seekers who appear at southern border ports-of-entry to wait for their hearing dates in Mexican border cities, rather than entering and waiting in the United States.
“Remain in” policies are not a perfect fit for any of FitzGerald’s five remote controls, but I would categorize the policies as a kind of “buffer-lite.” In other words, they don’t physically or legally prevent migrants from initially reaching the territory and filing a claim for asylum (as cages, moats, and domes can). Instead, they act as both a time-delay “gate” and a deterrent. As a time-delay gate, they actually reduce the population of asylum-seekers by temporarily preventing asylum seekers from residing in the country, thereby preventing them from either joining the general population or relieving the state of the obligation to house (incarcerate) them. But the stronger effect is probably deterrence; migrants who have to wait for longer periods in uncertain or dangerous conditions may give up while waiting, or just not try in the first place.
Though some of them have been struck down by courts, the MPP and many of FitzGerald’s five remote controls are often carried out in ways that are formally consistent with international or domestic migration law. (See the recent litigation over whether the MPP violates the U.S. Refugee Act.) Indeed, Fitzgerald argues that “questioning [the controls’] legality is necessary but not sufficient,” because “[t]he question should not just be whether a policy is legal, but also whether it is good.” And humanitarianism, he says, “provides a moral framework for measuring whether a policy is good.”
Despite this emphasis away from legality, political scientists, lawyers, and policy-makers may want to learn more about the tradeoffs that FitzGerald’s humanitarian-driven proposals necessarily raise. One of the key challenges of treaty drafting and negotiations is the tension between robust regulation and enticing a large number of participants (the so-called “broader vs. deeper” tradeoff). Of course, as with other treaty obligations, the Refugee Convention and Protocol require states’ consent to bind them. (Some argue that the principle of non-refoulement is now customary international law, binding most or all states, but that point is controversial.) There is some evidence that the Refugee Convention and Protocol have caused some key states to develop and implement domestic refugee/asylum systems which wouldn’t exist but for the Convention.
Had international refugee law banned some or all of the five sets of remote-control strategies, surely many fewer states would have ratified or acceded. In fact, in 2015 the prime minister of Denmark (one of the first states to ratify the Convention), called on states to renegotiate the Convention entirely unless European Union officials stemmed the flow of refugees resulting from the Schengen area’s open migration system. Likewise, if there were serious claims that the MPP program violated international refugee law, it’s easy to imagine President Trump pulling the United States out of the regime entirely (an act likely within his sole discretion). Dismantling the U.S. Refugee Act, the federal legislation implementing the Convention, would be politically and institutionally trickier, but weakening it around the margins would likelier be easier without its underlying international mandate.
For refugee advocates then, the optimal strategy might not be to push for the strictest possible rules, but for the most protective rules that can be attained without driving states away from the global refuge regime entirely. Like other international regimes, it’s unclear where exactly that tipping point lies. FitzGerald implicitly raises this issue but leaves a full discussion for others.
As with many important contributions to current policy debates, Refuge Beyond Reach raises several new questions that it cannot fully address. It doesn’t need to; the book is a detailed, meticulously researched, and generally compelling account of a central flaw in the global response to the current crisis. Refuge Beyond Reach will surely inspire new research and more conversations among legal scholars, empirical social scientists, and policy-makers about the problems FitzGerald exposes and the solutions he suggests.
Imagine a famous foreign jurist—say Richard Goldstone or Claire L’Heureux-Dubé—appointed to the U.S. Supreme Court, instead of (U.S. citizen) Samuel Alito, when popular criticism of citation of foreign law was at a fever pitch in the U.S. The outcry would have been swift and incendiary. Indeed, Ruth Bader Ginsburg and Sandra Day O’Connor received death threats for engaging with foreign law as they did. Yet for at least 21 jurisdictions (nearly all of them member states of the United Nations), foreign judges sit alongside citizen judges, helping to ensure the vibrancy of (sometimes recently established) democratic institutions, building confidence in the rule of law, and playing specific roles in ensuring judicial impartiality.
In Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, Rosalind Dixon and Vicki Jackson analyze the historical and functional reasons that these arrangements have arisen. With a focus on the democratic legitimacy of the practice, Dixon and Jackson concentrate on three jurisdictions—Hong Kong, Fiji, and Bosnia-Herzegovina—as they analyze the advantages, disadvantages, and factors that lead to relative success or failure of hybrid court efforts. Dixon and Jackson are attentive to the relevance of their subject, not only for the potential expansion of hybridization, but also for the legitimacy of comparative constitutional engagement generally (the article builds on their previous work on interpretive outsiders), even when all judges are citizens of a country’s constitutional court.
Their contribution is one I like a lot, and it will certainly shape important debates among comparative constitutional law scholars worldwide. For readers of Jotwell’s International and Comparative Law section, it is Dixon’s and Jackson’s analysis of the particulars of judicial selection—the who, how, and why—that may be of most interest. They argue the following are likely to foster more, rather than less, advantageous hybridization: the necessity of participation of foreign judges for legitimacy (real or perceived); extensive judicial experience and reputation; and domestic, rather than foreign, processes leading to selection. With respect to the latter, the relative number and influence of foreign jurists also plays a role.
Their case studies are detailed and illuminating. In Hong Kong, for example, the appointment of foreign judges helped assure commercial confidence in the city through the handover to People’s Republic of China rule, and their continuing presence has “maintain[ed] Hong Kong as a leading center for commercial dispute resolution, with all attendant economic benefits that can bring.” (P. 334.) Foreign judges are selected through appointment by the Chief Executive of Hong Kong on the recommendation of an independent commission composed of local judges, lawyers, and community members. In Fiji, “there is a need for foreign judges to serve on the country’s highest courts,” given that nearly all local lawyers have close links to the country’s (divided) political elite. Judges there are appointed by the President, on the recommendation of the Judicial Services Commission, following consultation with the Minister and Sector Standing Committee of the House of Representatives because they oversee matters related to the administration of justice.
In the Constitutional Courts of Bosnia-Herzegovina, by contrast, the President of the European Court of Human Rights appoints three foreign judges “after consultation with the presidency of B-H,” (P. 338.) Correspondingly, there has been greater internal resistance to the role of foreign judges there, especially by Serbian elites.
Composition matters too. A panel of three Australian judges determined that a 2006 seizure of power in Fiji was unlawful; they—along with the entire judiciary—were dismissed. In Hong Kong, foreign judicial participation is typically limited to one member of a five-member bench. On the Constitutional Courts of Bosnia-Herzegovina, foreign judges comprise three of the nine total members of the court. “All other things being equal,” the authors note, “a mix of local and foreign judges is likely to face lower legitimacy concern than an all-foreign bench.” (P. 341.)
While the article is primarily aimed at structural factors (selection, composition, and foreign influence), Dixon and Jackson are clearly aware that personality and temperament matter. Even foreign judges may be more or less willing to engage the local bar, undertake study, or share aspects of common constitutional traditions. If foreign judges undertake their responsibilities “with wisdom and sensitivity to local facts and circumstances (including socio-political context), they may have a better chance to increase the effectiveness and perceived impartiality of judicial decisions, whereas if they are insensitive to this broader context, or conversely too consistently deferential to local judges’ factual and legal judgments, they may undermine the knowledge and legitimacy benefits of having foreign judges.” (P. 343.) These idiosyncratic traits and behaviors are the most difficult to measure, and they appear to be a promising starting point for Dixon and Jackson’s next study.
Hybrid Constitutional Courts is a valuable contribution, not only for the comparative constitutional law literature, where it is likely to be situated, but also for scholars of constitutional design and judicial behavior. The authors clearly have some of the latter research in mind, and I expect that Dixon and Jackson will use their framework to design more extensive interview-based research on attitudes and behaviors of foreign judges participating in these hybrid roles. I look forward to it.