“The adage ‘on the internet, nobody knows you’re a dog’ reflects a now naïve belief in the emancipatory potential of cyberspace,” writes Catherine Powell in her splendid new essay on race, internet, and international human rights published as part of a Symposium issue on the seventy-year anniversary of the Universal Declaration of Human Rights. In Race and Rights in the Digital Age, Powell critiques the belief according to which the digital space is a raceless and liberating utopia. She compares this online fiction to the offline ideology of colorblindness. Much like colorblindness has been used to conceal and perpetuate racial inequality, the supposed post-racialism of the digital world is a fig leaf masking the fact that it is pervaded with racial bias.
In making this point, she builds upon Osagie Obasogie’s critique of colorblindness that uses a research design involving interviews with blind people about race. Obasogie revealed that even people blind since birth are not colorblind, but just as likely as sighted people to equate race with visual characteristics. Similarly, Powell shows that “[r]ace is a deeply entrenched social construct—both online and offline—even when we cannot literally always ‘see’ it.”
Powell’s essay includes a meditation on how our preconceptions about racial difference structure our digital lives and, therefore, some of today’s most fundamental processes of communication and social outcomes, leading to new forms of discriminatory practices. This state of affairs, she argues, undermines the Universal Declaration of Human Rights’ promise that “[e]veryone is entitled to all the rights and freedoms set forth in th[e] Declaration, without distinction of any kind, such as race, [etc.].”
She marshals ample evidence to substantiate her claim that race is perceived, if not literally “seen,” online. In particular, she analyzes technologies such as artificial intelligence which incorporate human biases in algorithms giving effect to racial prejudices and reinforcing structural racial inequalities by affecting “which school a child may attend,” “how a credit score is calculated,” or “whether to allow an individual out of jail on bail.” She also points to the constant data collection on users, which enables private and public entities to make predictions about individuals’ racial identities and to treat them differently in their provision of goods and services.
Powell’s piece is also a methodological call to action, inviting further collaborations between critical race theory and data privacy in the context of international and comparative law scholarship. It paves the way for work exploring the racial impact of several features of the web in the United States and elsewhere. The repeal of net neutrality protections in the United States and its consequences on content that matters of communities of color is but one domestic example. The modes of racialization at work in web content and capabilities developed, hosted, or used in countries that claim to neither collect nor use racial data (such most European countries) would also benefit from analysis inspired by Powell’s essay. Globally, the centering of online public knowledge around the perspective and languages of rich, global North countries calls for sustained scrutiny of the underlying role of national and international law. To dismantle discrimination, in other words, legal scholarship ought to take the harms produced by law and digital technology seriously, striving to make visible the way race functions as an organizing social principle online as well as offline.
Innovation policy—a relatively new phrase for an old set of top-down competitiveness approaches (e.g. “industrial policy,” “science policy,” “research policy,” and “technology policy”)—is necessarily a combination of centralized investment, structure of private-sector incentives, and public policy priorities.This combination has always been unwieldy, multivariate, and politically charged. As a result, constituencies favoring one or other approaches (e.g. longer patent protection, more funding of public universities and research infrastructure, tariff or non-tariff import measures) have lacked a unifying framework through which to analyze shared problems.
In Innovation Policy Pluralism, Daniel J. Hemel and Lisa Larrimore Ouellette provide that framework. With a focus on intellectual property law, Hemel and Ouellette take the universe of innovation instruments—patents, prizes, grants, tax credits, purchase leverage, public licensing and other alternatives—and create a coherent method by which to assess and value them. Dissecting these options into “innovation incentives” and “allocation mechanisms,” Hemel and Ouellette urge policy-makers to consider alternatives under which these incentives and mechanisms may be matched, mixed, or layered.
Their contribution is one I like a lot, and it will certainly shape important debates among intellectual property scholars in the U.S.; for readers of JOTWELL International and Comparative, it is Hemel’s and Ouellette’s extension of their argument to international intellectual property law that may be of most interest. They argue the following: first, their framework may assist countries in better tailoring their innovation policies within prevailing international intellectual property instruments; and second, international intellectual property law itself plays a regulatory role, ensuring that some countries do not free-ride on the innovation of others.
According to them, the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)—often taken as the world’s international IP law—may be made more flexible more easily through the framework they construct. For example, “a country could provide incentives [to innovate] though grants and prizes conditioned on relinquishing IP rights…[o]r countries can both subsidize the domestic production of knowledge goods through grants and tax credits and purchase domestic patent rights from the producer, while still allowing the producer to collect overseas profits (with the state potentially collecting some of those profits through a tax on the domestic producer).” (P. 590.)
With respect to their second point, Hemel and Ouellette argue that international IP law (again, impliedly TRIPS) exists to ensure that there is a global set of incentives so that all countries either invest in innovation or compensate those who do. So far as it goes, Hemel and Ouellette are probably correct, but as they no doubt also know, the proliferation of so-called TRIPS-plus agreements, which often invade deeply into the policy-setting prerogatives of sovereign states, may limit the capacity of resource-poor countries to shape their innovation policies as freely as the authors imply.
To be sure, Hemel and Ouellete contemplate the possibility of cost-sharing outside of international IP law, and there are plenty of examples under way like the World Health Organization’s Pandemic Influenza Preparedness Framework and a contemplated biomedical research and innovation treaty committed to non-IP incentives for research into Type II and Type III diseases. In a separate work, I have argued that such cost-sharing vehicles proliferate as international intellectual property law further constricts national-level regulatory prerogatives, especially those affecting basic human needs.
Innovation Policy Pluralism is a valuable contribution not only to the intellectual property literature, where it might naturally nest, but also to scholars of international law and international relations. The authors clearly have some “TRIPS flexibilities” in mind, and my expectation is that Hemel and Ouellette will use their framework to tackle some of the most important problems facing countries that feel whipsawed by the needs of their domestic populations and the strictures of international intellectual property law.
Pamela Bookman, The Arbitration-Litigation Paradox
, __ Vand. L. Rev.
__ (forthcoming), available at SRRN
Arbitration and litigation are often treated as opposites. Arbitration in its idealized version is sleek, fast, and endlessly adaptable. Litigation is its foil: clunky, inexpert, and sometimes captured. As a consequence, being pro-arbitration and anti-litigation are assumed to go hand-in-hand.
In The Arbitration-Litigation Paradox, Pamela Bookman challenges this account. With a focus on international commercial arbitration, Bookman suggests that hostility to litigation undermines the key role of courts in supporting arbitration. In other words, to be pro-arbitration, sometimes courts need to be pro-litigation as well.
An interesting aspect of using international commercial arbitration as the core example is that many critiques about party consent and sophistication are simply not present. Arbitration provides a much-needed “neutral and predictable forum for potential disputes” that cross national borders. And “[b]usiness-to-business arbitration generally and international commercial arbitration in particular are the paradigm, original context for the pro-arbitration policy in the first place.” (P. 34.)
In the context of sophisticated commercial parties and cross-border transactions, one would expect deference to parties’ private contracting. In its arbitration cases, however, the U.S. Supreme Court overrides the choices of the contracting parties. It sacrifices arbitration’s “private-law values” of autonomy and adaptability in favor of what Bookman calls “essentialist values” that focus only on arbitration’s difference from litigation. (P. 20.) Courts strike down “forbidden characteristics” of arbitration “that make arbitration look more like litigation.” (P. 34.)
In Bookman’s account, this essentialist approach has no place in a world where distinctions between arbitration and litigation are not always clear. (Note the complaint in the literature that commercial arbitration is being “judicialized.”) The term “arbitration” itself is overbroad, obliterating an important distinction between arbitration of consumer claims, where critics point to overexpansion and negative effects, and international commercial arbitration, where courts are “insufficiently supportive.” Bookman’s proposed replacement for the Court’s essentialist views is in part “a clarion call to regulate arbitration in a subject-matter-specific way.” (P. 49.)
The article highlights the Court’s rhetoric about the virtues of arbitration and the vices of litigation. For any reader who sees this as a rough-fought battle over access to the public court, terms like the “essentialist values” of arbitration may seem a bit bloodless. A more rabblerousing version might tell a story about the Court’s lip service to freedom of contract and the talisman of consent, and how these give way to an opposing agenda. (Dismantling aggregate action? Defanging the plaintiffs’ bar?)
But these aspects of the fight over arbitration often dominate discussions, obscuring other underlying patterns. Bookman’s elegant framework and isolation of the most defensible area of arbitration allow the reader to look past these usual debates. The article challenges the Supreme Court on the extent to which its nominally pro-arbitration decisions actually support this core category of arbitration. And Bookman offers a subtle shift of perception on the major arbitration cases.
The Arbitration-Litigation Paradox is a worthwhile read. It leaves some hanging threads, but this is all the more reason to keep an eye out for Bookman’s future work. The Adjudication Business, which she previews at the article’s end, promises to pull on one of these threads: the “complex, competitive relationship between litigation and arbitration.” (P. 43.)
The last year has seen the publication of a range of impressive books on the decline of democracy worldwide. One of the absolute best among these is undoubtedly the new book by Aziz Huq and Tom Ginsburg, How to Save a Constitutional Democracy.
The book has four key strengths, some common to other books in this genre – but which few others can claim to have in as full a measure.
First, the book offers an extremely careful and thoughtful set of definitions of the core concepts in current debates about democracy and its future –concepts such as ‘democracy’ and ‘liberal democracy’, ‘populism’ and ‘democratic erosion’. Their definition of democratic erosion is especially helpful. They suggest it involves a “process of incremental but ultimately still substantial, decay in the three basic predicates of democracy – competitive elections, liberal rights to speech and association and the rule of law,” across different institutions, against a baseline of some ingoing level of democracy. (P. 43-4.) Typically, they suggest it also does not involve descent into full-scale authoritarianism, as opposed to a more hybrid regime type. Definitional clarity of this kind is critical to productive scholarly and public debate on these issues: without it, we risk talking past each other about both the causes and consequences of the phenomena we are observing in so many countries worldwide.
Second, the book provides a truly global survey of the health of democracy in various countries, using a mix of qualitative and quantitative yardsticks. But Huq and Ginsburg are not only writing for a comparative constitutional audience: their work aims to reach a broad public and academic audience in the US, as well as elsewhere. Because of this, their work makes an important contribution to mainstreaming what Ran Hirschl has recently called the field of “comparative constitutional studies” – i.e., the study of global constitutions from an interdisciplinary and empirical perspective. By drawing on both historical and contemporary, but comparative, case studies, Huq and Ginsburg derive two key conditions under which democracy is most likely to experience erosion – i.e. conditions of ‘charismatic populism’ and ‘partisan degradation.’ (Pp. 78-116.) They then use these criteria to analyse the current state of democracy in the US.
Using this lens suggests that constitutional democracy in the US may be even more in peril than many astute observers realize: the threats posed by President Trump’s charismatic populist style are well known (even if their quite spooky parallels to the actions of charismatic populists in Venezuela, Argentina or Thailand are not). But the signs of partisan degradation Huq and Ginsburg identify – i.e., the widespread use of partisan gerrymandering by both parties; the dramatic shift to the right by the Republican party; and the announcement, by Senate Republican leader Mitch McConnell in 2010, that the core strategic aim of the Republican Party from then on was to make President Obama a one-term president – are arguably less widely noticed as signs of potential democratic erosion. In other words, they suggest that democratic erosion in the US both predates and goes much broader than the actions of the Trump administration; and a comparative lens helps us see that more clearly.
Third, the book provides a sophisticated interdisciplinary account of the legal and political conditions necessary both to sustain and erode democracy. For instance, it notes the importance of repeated interactions between (relatively evenly matched) political parties in sustaining norms of democratic competition (Pp. 83-84) – a key insight of the political science literature in this area in recent years. And it notes the central role of interest groups – for both better and worse – in shaping democratic politics (P. 137), and thus a central tool of democratic erosion will often be an attack on interest groups and/or civil society.
Similarly, the book draws on prior work by Ginsburg on constitutional endurance to suggest that an important predictor of democratic erosion will be prior experiences of non-democratic government – i.e., that “crisis begets crisis.” (P. 137.) Based on this, Huq and Ginsburg suggest that one important source of protection for democracy in the US is that it has not generally experienced such crises – and thus “there is no subset of interest groups [in the US] that can confidently predict from past experience that it, and others, will gain from democracy’s death.” (P. 137.)
Fourth, the book engages in an extremely broad and sophisticated exploration of the potential design strengths and weaknesses of the US Constitution as a potential bulwark against democratic erosion, and what other design options or alternatives might be available in this context. Ginsburg and Huq are also admirably balanced and nuanced in their approach to various design choices in this context. Article V of the U.S. Constitution, they note, “receives a good deal of criticism from liberal legal scholars” for the obstacles it creates to formal constitutional change in the US, but equally, this unusual degree of amendment rigidity creates an important bulwark against one common means of democratic erosion – i.e. what David Landau has called “abusive” constitutional amendment. Yet the bulwark is partial not absolute: it could be overcome by sufficiently mobilized majorities, and more readily, by informal modes of constitutional change. (Pp. 139-41.) Similarly, they note the virtues to the Supreme Court’s flexible approach to executive power: it has reduced the risk of emergency rule, and thus potentially path-dependent forms of interruption in constitutional democratic rule, in the US, but at the price of meaningful protections for individual rights in a range of circumstances. (P. 137.)
In other contexts, they are more straightforwardly critical of the potential design flaws in the US constitutional model: the 25th Amendment, for example, contains no obvious deadlock-breaking mechanism (such as an early election). And one only needs to think of recent debates in the US about the use of the 25th Amendment to be reminded of the potential magnitude of this omission.
Huq and Ginsburg also draw attention to ways in which other countries may in fact have stronger constitutional protections against democratic erosion – e.g., written and entrenched (rather than conventional) controls of the administrative state, entrenched provision for a ‘network’ of independent institutions, including an electoral commission, entrenched provision for the role of the opposition in parliament, and constitutional courts with greater motivation (not just capacity) to engage in what Samuel Issacharoff has called a form of ‘democratic hedging’. They likewise suggest that parliamentary and semi-presidential systems may provide greater protection against democratic erosion than pure presidential models – in part by relieving stress on presidential term-limits as a key design solution – and that regional and international norms and institutions can provide a useful additional check against erosion.
Huq and Ginsburg offer some useful insights as to the potential strengths and weaknesses of these different solutions. But for the most part, they do not turn the same critical gaze to the effectiveness of these design ‘solutions’ as they do to the current US constitutional model. Nor do they explore the potential dangers, or limits, to how these models might work in a context of radical political polarization and highly resourced and sophisticated interest-group politics (i.e., the US itself). Indeed, these options are mentioned in only an exploratory way, largely as a reminder to US readers that “our existing institutional vocabulary does not exhaust the possibilities of liberal constitutional democracy.” (P. 204.)
As a comparative scholar, this is the one area in which I would fault the book – or at least have encouraged Huq and Ginsburg to engage in a longer comparative diversion. But I also see how multiple comparative diversions of this kind could have undermined one of the key ambitions of the book, which was to reach a broader public audience. And this ambition is itself one of the leading reasons to admire the book. It is extremely careful and evidence-based and yet it seeks to reach a broader audience – at a time when, as Huq and Ginsburg themselves note, a great deal of current political debate explicitly rejects the value of arguments and evidence of this kind. (Pp. 231-32.)
As both a scholar, and someone committed to democracy in its constitutional liberal form, I can also only hope that it is Huq and Ginsburg, and not their opponents, who ultimately prevail in this battle of ideas. It may be that saving democracy depends on it.
“There ought to be a law about that” is a common response to circumstances we don’t like. But outlawing war? We might as well legislate against the flu. A new book called The Internationalists: How a Radical Plan to Outlaw War Remade the World authored by Professors Oona A. Hathaway and Scott J. Shapiro of Yale Law School shows how the endless cycle of war and peace prior to World War I has given way to a New World Order, post World War II. Today, they argue, war is no longer legitimate and might does not make right. But this New World Order comes at a cost as civil wars and internal disputes challenge established national borders (forged themselves by war). Has one form of aggression just replaced another?
Hathaway and Shapiro have produced a readable and provocative book that I like because of its extensive coverage over three self-contained but connected parts. The first part is about Hugo Grotius and the background that led to his groundbreaking book on international law and war. Or perhaps, his book is actually about war as international law, as conquest became the preferred means of resolving conflict among nations. A 17th Century naval battle in the Straits of Singapore between the Dutch and the Portuguese was the catalyst for a legal dispute that Grotius infamously resolved by laying down principles for just war. But these principles expanded beyond their boundaries to support the use of aggression to resolve a wide range of disputes, going beyond the limits of “just war.” Grotius, as Hathaway and Shapiro tell us, laid the foundations for a world order which recognized the nation’s right of conquest, a license to kill within skirmishes, and gunboat diplomacy. Within this order, nations had to remain impartial or take sides; there was no room for intervention through sanctions or mediation. Invariably, nation-states would be forced into conflicts, such as border disputes, debt defaults, or assassinations, with resulting regional or global escalation. World War I was the culmination of the international order that Grotius wrought.
Hathaway and Shapiro’s first part gives way to a second part in which they take the reader down the path to the Briand-Kellogg Pact and the many trials that followed. Salmon Levinson, a corporate lawyer from Chicago, took inspiration from events after World War I, as well as the pragmatism of John Dewey, and heralded the cause of banning war. Working with Senator Philander Knox and Henry Cabot Lodge, Levinson tried but ultimately failed in his efforts when Congress refused to ratify the League of Nations. The Briand-Kellogg Pact emerged from these ashes a decade later, setting the stage for global debates over the role of aggression and the final resolution in the principles emerging from the Nuremberg Trials.
This second part is my favorite of the three. It is dense and textured, traversing the emergence of Japan as an imperial power fueled by that nation’s discovery of Grotius as a scholar and the heated academic politics between Carl Schmitt and Hans Kelsen in Weimar, then Nazi, Germany. Hathaway and Shapiro provide a multi-country narrative, both synchronic and diachronic, that describes a transition from the Old World Order of Grotius to a New World Order, that is perhaps taking shape.
Historical and legal transitions bring intellectual debates to life and show what possibilities are available to the contemporary reader. Hathaway and Shapiro capture a world in flux, retaining the bad features of the Old Order while lacking the full maturity of the New. World War II and the years leading up to it were an unsettling, disturbing and violent period. Hathaway and Shapiro capture the familiar anxiety but filtered through the legal and ideological debates of those chaotic years. This second part reads like an engrossing thriller, even though the ending has been thoroughly spoiled by our knowledge of history.
The third part reads like a cold denouement coming in the wake of a gut-wrenching climax. We get to see how the principles of the Old World Order fared, revealed like the “Where are they now?” photos of a stellar academic class. But their fates are less well settled. The New World Order is one in which conquest is illegal, aggression is a crime, sanctions are permitted, and agreements among nations cannot be coerced. I was reminded of Albert Hirshmann’s description of doux commerce from his “The Passions and the Interests.” Peace reigns and the relations among nations are founded on consensual exchange.
But Hathaway and Shapiro show how this resolution is far from sweet. Ethnic tensions, civil strife, and violence within the nation-state have replaced hostilities between nations (although those still persist). Grotius’ justifications for war and the resulting incorporation of territories within nations has set the stage for a new type of localized warfare. The authors argue that this new style of aggression is the price for the New World Order. The third book provides a somber ending to The Internationalists, one wrapped in statistical studies by the authors and their capable research assistants. They teach us that the size of nations has shrunk as measured by size of territories since World War II. The resulting nations have become more unstable as internal conflict is not suppressed by larger entities, such as the Soviet Union or the Ottoman Empire. Outcasting through the use of sanctions is the new instrument for conflict resolution with successful resolution resting on economic and political power rather than military might. What the third part of the book demonstrates is that war, as justified by Grotius, led to territorial expansion and imperialism with the resulting patina of stability that centralized power of the Old World Order. The New World Order lacks this stability. These findings are not surprising.
The title for this jot is an allusion to Leo Tolstoy’s War & Peace, a novel about Napoleon’s failed conquest of Russia, whose working title was “All’s Well That End’s Well.” Would the conclusion of Hathaway and Shapiro’s book support Tolstoy’s original choice of title? Or has the cycle of war and peace taken just another form? Conquest, as Grotius would have us understand it, laid the unintended path to imperialism and totalitarianism. Even with the patterns of violence and oppression we see today, the New World Order, according to Hathaway and Shapiro, is perhaps on the arc to equality and peaceful coexistence among nations. However, with the endless patterns of violence, the end of that rainbow seems to dissipate out into the horizon. Nonetheless, the path may be the only feasible alternative to the violence underlying the Old World Order.
An unsatisfying ending on its face, the third part sets a challenge for the next generation of internationalists, those who seek to ban all forms of aggression and replace it with reasoned exchange among peoples across and within borders. It will take more than a treaty for this next generation to thrive.
Referendums have been used to decide divisive constitutional questions in polities around the world. In some cases, the relevant divisions run deeply along ethnic and religious fault-lines and the polities have long histories of conflict. Joanne McEvoy’s 2018 article, Letting ‘The People(s)’ Decide: Peace Referendums and Power-Sharing Settlements, makes a significant contribution to the emerging literature on “peace referendums.” In what follows, I will highlight this contribution and argue that her text merits close attention from comparative constitutional law scholars.
At the outset of the article, McEvoy identifies her aims and underlines the high stakes involved when referendums are held in societies riven by conflict. She writes:
This article assesses the use of the referendum to legitimate power-sharing democracy in deeply divided societies. If we lack a full understanding of the dynamics of referendum design in transitions to power-sharing, minority groups may find themselves in a polity they perceive to be both illegitimate and in favour of the majority. Further intracommunal antagonism and the risk of recurring conflict could threaten a fragile political bargain reached by elites. Exploring the value of referendums is therefore important for the stability and legitimacy of peace-building. (P. 865.)
McEvoy situates her text in the extensive literature on power-sharing arrangements.
Authors, including most notably Lijphart, have argued that power-sharing arises when minority groups secure interests that were previously vulnerable in a system that they had regarded as illegitimate. (P. 866.) Elites often play a key role in negotiating these kinds of compromises, and according to McEvoy, this role has drawn scholarly scrutiny since the self-interest of elites may diverge from the interests of the populations whom they purport to represent. (P. 867.) McEvoy further argues that a central role for elites in deciding the shape of political institutions sits uneasily with understandings of legitimacy in the academic writing on state-building and social contract theory. For the former, popular participation assists in “building a sense of political community.” (P. 867) And for those writing in the tradition of Locke, the consent of the governed is essential to the continuing legitimacy of political power. (P. 867.) McEvoy notes that the use of referendums to address significant political questions has been widely justified for these reasons. (P. 867.) Yet, she argues, the academic literature has paid insufficient attention to the question of what role groups in deeply divided societies should play in constitutional referendums about power-sharing agreements. (P. 868.)
According to McEvoy, some of the literature on power-sharing suggests that in such a context, a “simple majority threshold risks privileging the majority, thereby excluding the minority community and ultimately failing to legitimate the deal reached by elites.” (P. 868.) Other writing suggests that alternatives to a simple majority rule carry their own challenges. Supermajority rules give rise to difficult questions about how to set the threshold in a way that accurately reflects the amount of minority support necessary to legitimate an outcome. (P. 869.) Rules requiring concurrent majorities in the groups that are party to the central social divisions in a polity risk entrenching the relevant markers of identity, exacerbating the divisions, and jeopardizing minorities whose identities are not so entrenched. (P. 869.)
McEvoy examines these claims in light of two case studies. Her first example, the Northern Ireland referendum on the Good Friday Agreement of 1998, challenges the claim that a simple majority rule will necessarily prejudice the interests of a minority. The referendum eschewed a rule requiring concurrent majorities in the unionist and nationalist communities and opted for a simple majority threshold. According to McEvoy, this threshold was sufficient to legitimize the outcome, in part because the substance of the agreement “sufficiently addressed the groups’ self-determination aspirations,” (P. 871) and its continuing success hinges on policy-makers’ continuing “to foster support for the new constitutional order.” (P. 872.)
The second case study involved a 2005 referendum in Iraq ratifying a constitution that included asymmetrical federalism and power-sharing arrangements in federal institutions. (P. 872.) The referendum required a majority of voters across Iraq and the support of two-thirds of voters in three or more governorates. (P. 872.) Because three governorates were located in Kurdistan, McEvoy argues, the Kurdish minority were effectively given a veto power. (P. 873.) McEvoy concludes that because the preferences of the Sunni and Shi’a Arabs were “not fully accommodated in the rushed, imposed constitution-making process of the CPA (Coalition Provisional Authority),” (P. 873) the referendum could not “fully legitimate” the constitution, despite the fact that the qualified majority referendum rules were “arguably appropriate.” (P. 874)
In my view, the signal contribution of McEvoy’s article lies in the fact that it challenges assumptions about various kinds of rules in constitutional referendums about power-sharing arrangements in deeply divided societies. What lessons might her analysis hold for the field of comparative constitutional law? This question is pertinent because significant comparative work is being done by constitutional law scholars on constitutional change generally, and referendums, in particular. Perhaps understandably, constitutional law professors tend to concentrate their analyses on explicit rules. McEvoy’s article suggests that such a focus may lead one to underestimate the role that informal processes can play in determining the success or failure of constitutional reforms. When constitutional law scholars do shift their attention away from the standard positive law sources, they can rely somewhat uncritically on social scientists’ work, particularly when a consensus in a field has formed. McEvoy’s article suggests that we should be attentive to the specificities of constitutional contexts, particularly when they challenge received academic wisdom.
Rising threats to judicial independence—in Hungary, Poland, and elsewhere around the world—are putting into stark relief the political and institutional challenges faced by “the weakest branch.” It is more important than ever to think seriously about how courts gain and maintain the legitimacy necessary for effective authority; how they develop and retain their independence; and whether judicial design might provide insights or answers.
In Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies, Salvatore Caserta and Mikael Rask Madsen shed new light on these questions through the experiences of the Caribbean Court of Justice (CCJ). In addition to providing a helpful exposition on the creation and early development of the CCJ, the Article explores the elements of judicial design that have contributed to the CCJ’s growing authority and legitimacy. The most engrossing analysis is that anticipated by the title: the CCJ’s “unique double jurisdiction,” which results in “two relatively different constituencies and operational contexts” yet has created important synergies for judicial empowerment.
Caserta and Madsen are scholars at the University of Copenhagen, which houses iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts. The Centre produces excellent (and extensive) work on international courts (ICs), their role in a globalizing legal order, and their impact on politics and society. Given their vantage point, Caserta and Madsen naturally frame the article (part of a larger symposium) in light of broad theories of international court authority (although their insights have relevance to national courts as well). The contribution to the IC debate is expositional: the CCJ serves as a case-study of an international court that has progressed from “narrow authority” to one that has “intermediate authority.” More specifically, between 2005 and 2016, a growing number of practitioners and litigants “acknowledge[d] the binding nature of [the CCJ’s] rulings and act[ed] in accordance in words or deed” (P. 91.)
The project takes flight in its close attention to the mechanisms that have facilitated the strengthening of the CCJ, showcased in a deeply contextualized analysis that draws on data from forty-one interviews with a variety of key stakeholders in the broader CCJ system. For example, the authors demonstrate the importance of personnel, highlighting the critical role of appointments procedures and the political impact of the selection of Michael de la Bastide as the CCJ’s first President. De la Bastide’s stellar credentials and diversity of experiences satisfied both traditional and modern legal elites, straddling and transcending the (growing) divide in the profession. The Article brings into focus the contours of a post-colonial legal profession in an integrating region, including the nature of legal education and the changing socialization of lawyers. Of course, the critical role of individual judges in the development of an independent court is a familiar story, but the details of the Caribbean experience are fascinating.
The CCJ’s dual jurisdiction is the most unusual mechanism that has fostered its authority and independence. The CCJ was designed to accomplish two distinct tasks: First, it serves as the court of the Caribbean Single Market and Economy. Twelve member states of the Caribbean Community (CARICOM) have accepted the court’s jurisdiction, and from this perspective, the CCJ looks similar to the European Court of Justice or to other regional courts designed to implement trade or economic-based integrationist aims. The court has original jurisdiction over Community law and has interpreted its founding treaty to allow for direct applications from private litigants. Second, it functions as a replacement for the Judicial Committee of the Privy Council as the court of last resort on issues of civil and criminal law for those Caribbean states that were former British colonies (and retained the JCPC’s jurisdiction). Thus far, only four Caribbean countries have accepted the CCJ’s appellate authority (Guyana, Barbados, Belize, and Dominica).
The ways in which these powers have intersected and combined have served to enhance the CCJ’s importance. The CCJ’s first cases arose under its appellate jurisdiction, supported by nationalist and de-colonizing pressures to wrest common law from the JCPC in London. In “impos[ing] itself as the main interpreter and creator of a genuine Caribbean jurisprudence” under the common law, the CCJ took on a heightened stature in the region. Between 2005 and 2015, 143 cases were filed under its appellate jurisdiction, and the “case flow had a legitimizing effect even outside of those countries” that permitted appeals to the CCJ, producing a spillover effect. The acceptance of the CCJ’s appellate decision strengthened the CCJ’s authority over community law. And the virtuous circle has momentum: When the CCJ decided a major case under community law, Myrie v. Barbados, with a rights-promoting result, the decision was used in countries with JCPC jurisdiction as a justification for ending appeals to the JCPC and switching to the CCJ, “regardless of the fact that [Myrie] did not concern appellate jurisdiction.”
The complicated dynamic of the CCJ’s dual role raises other questions about whether general theories of court legitimacy are relevant to the CCJ. In a 2017 article, Caserta uses the CCJ to challenge the conventional wisdom that newly established international courts should avoid politically sensitive issues to guard against backlash. He argues that best practices devised for courts focused on regional integration and economic law may not apply to the CCJ, which was expected—and designed—to engage with important political issues under its appellate jurisdiction. (Indeed, as both articles note, the CCJ’s very existence was in part driven by dissatisfaction with rights determinations made by the JCPC.)
Caserta and Madsen deftly trace the evolution of the CCJ’s authority, but they make no predictions about the future. And, of course, even authority wisely husbanded can be quickly lost. But the experience of the CCJ reminds scholars (and designers alike) of the benefits to institutional stability and judicial effectiveness that may be hidden in jurisdictional grants or other, more mundane aspects of judicial design.
Cite as: Erin F. Delaney, Jurisdictional Synergies in the Caribbean
(May 8, 2018) (reviewing Salvatore Caserta & Mikael Rask Madsen, Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies
, 79 Law & Contemp. Probs.
89 (2016)), https://intl.jotwell.com/jurisdictional-synergies-in-the-caribbean/
Sherally Munshi, Comparative Law and Decolonizing Critique
, 65 Am. J. Comp. L.
207 (2017), available at SSRN
In her magisterial essay, Comparative Law and Decolonizing Critique, Sherally Munshi invites us to undertake a “decolonizing critique” of comparative law, which entails reflecting about “our responsibility towards and recognition of difference” and “the relevance of comparative study to the societal exigencies of our particular moment.” The occasion for the essay is a special issue of the American Journal of Comparative Law dedicated to Pierre Legrand’s book-length article Jameses at Play in which he identifies two irreconcilable strands of comparative legal studies—positivism and culturalism—advocating for the latter.
Munshi’s reading of Legrand is but a stepping stone for a momentous contribution to the debate over the raison d’être of comparative law. She proposes an “alternative approach” that “might play an important role in decolonizing and democratizing legal thought.” Her vision is one of a “broadly expanded comparative law, one that assumes a leading role in addressing an entrenched Eurocentrism in legal discourse while providing hospitable ground for a variety of critical and interdisciplinary projects, especially those that might join in the effort to decolonize higher education and to project alternative, more equitable forms of coexistence.”
How are comparativists to achieve these goals? Munshi suggests that they look to another comparative discipline—comparative literature. In the 1960s, comparative literature underwent its own process of self-examination and transformation by turning to critical theory, freeing itself from the imperative to compare and becoming “one of the most compelling sites of intellectual production in the university.” Munshi, whose Ph.D. in English and Comparative Literature focused on the experience of Indian immigrants to the United States in the early twentieth century, is well-positioned to see the field’s own learning over time.
Based on this example, she proposes four exit strategies for comparative legal scholars. First, they could abandon the practice of comparison itself, adopting instead a worldly orientation, or alternatively embracing “the notion that all study is comparative.” Second, given that comparative legal scholarship “remains resolutely Eurocentric,” offering “painfully little discussion about legal cultures outside of Europe,” comparativists could decenter Europe and broaden the cultural scope of the discipline. Third, they could shed the nation-centered model of comparison “to explore the many relationships that minoritized subjects forge with one another across national boundaries.” As Munshi’s work illustrates, this approach may involve probing “the foreignness that lies within a nation’s borders,” as in her brilliant article on Dinshah Ghadiali, one of several Indian immigrants threatened with denaturalization in the 1920-30s on the ground that they were not “white persons.” Fourth, comparative law could move to a “relational” approach to race and racism so as to uncover the colonial roots of contemporary nation-state and racial forms.
The good news is that a growing number of comparative law scholars trained and/or based in the United States and Europe are experimenting with these exits, or variations thereon, expanding the field’s frame of reference beyond its usual topics and geographic areas, including by giving voice to minority communities. For instance, Tanya Hernández’ research exposes how racial hierarchies in Latin American countries are both “obscured and elucidated” by a depiction of the United States as colorblind. Premised on the insight that being a mother is often what subordinates women, Julie Suk has embarked on a project to reframe constitutional gender equality in the United States by reference to motherhood protections in post-war European Constitutions. Anne Peters has pioneered a new branch of comparative legal research, known as “global animal law,” which treats animal interests as having intrinsic legal value in a way that is transboundary, that is, that challenges not only the legal human-animal boundary, but also nation-state boundaries. In my own study of white French judges and prosecutors’ unwillingness to reflect on racial and sexual diversity in their profession, I have also benefited from what Munshi calls “minor comparativism”—her term for a self-reflexive orientation that “sets the official image of a particular state against the reflection of its minority subjects.”
The question remains whether these haphazard efforts are sufficient even to begin comparative law’s decolonization. Should comparative legal studies undergo a process of institutional reform similar to that which transformed comparative literature fifty years ago? I read Munshi’s article as a compelling plea for law schools actively to recruit faculty with expertise beyond European legal cultures and languages and to alter their curricula to include her broadly expanded conception of comparative law. Her diagnosis also calls for academic organizations such as professional associations and journals to support and promote scholarship that breaks with the discipline’s Eurocentric and colonial roots. That her own work has been published in the American Journal of Comparative Law, the foremost U.S. peer-reviewed journal dedicated to the field, should give us hope that some movement is underway. For the change to be broad and deep, though, those of us who subscribe to her views need to sustain it in our daily thinking, teaching, mentoring, conference organizing, and of course, writing.
Reviewing Iris M. Barsan, Legal Challenges of Initial Coin Offerings (ICO)
, 3 Revue Trimestrielle de Droit Financier (RTDF)
(2017), available at SSRN
Cryptocurrencies and Initial Coin Offerings (ICOs) present an extreme challenge to law organized by national boundaries. Legal Challenges of Initial Coin Offerings by Iris M. Barsan—a modestly titled (for US standards) and concise article—provides a comparative account of the regulation of cryptocurrencies. Fundamental questions are at stake: What are cryptocurrencies? Are they money? Securities? Something completely new? One of the article’s strengths is its recognition that we should care deeply about who gets to provide the answer. The article contributes to a growing literature about a hot topic by being explicit about the jurisdictional and choice-of-law issues inherent in transactions carried out in what the author describes as “completely virtual spaces without any territorial or geographic boundary.”
What are cryptocurrencies? Existing categories are of limited help. Cryptocurrencies have characteristics of money or securities, so regulation could borrow from these areas, but their structure varies and they do not fall cleanly into one category or the other. Barsan contests the characterization of cryptocurrency as a legally unidentified object (objet juridique non identifié). Instead the author suggests that we should think of it as having multiple identifications based on the characteristics of the particular cryptocurrency, especially currency-like or security-like tokens.
The author also points out that the characterization of cryptocurrencies depends on what country gets to define them. An example from the article provides a sense of the complexities. Assume you need to determine the law that governs an ICO or cryptocurrency transaction. Absent a choice-of-law clause, the governing law might be that of the consumer’s home state (if investors count as consumers). Or the law of the seller’s state might govern, but only if investors do not count as consumers and tokens are considered “sale of goods.” If no governing law can be determined, the default is the “law of the country where the damage occurs.” But even that default is problematic in these transactions that lack “territorial attachments.” (Where is an investor’s virtual wallet?) Finally, national courts may simply apply mandatory national investor protection rules, regardless of other conflict-of-laws issues. You get the picture. Ultimately, these complications illustrate the need for articles like this one that patiently detail the legal framework.
The complexity of the topic may prompt in the reader an urge for a more literal and simplified map. I provide the chart below both to highlight the author’s contributions and to push the author to think about formats for more simplified reference. (The underlying information is derived from the article, though any mistakes are mine.)
Table: EU Conflict of Jurisdiction Rules
* The author points out the difficulty of establishing directed activity if the white paper is “written in English only, published on an English website” with an extension “like .com or .net” and the currency used was Bitcoin or Ether.
The US SEC Chairman opened a recent statement by pointing to a world “abuzz” about cryptocurrencies and ICOs, adding this novelistic take: “There are tales of fortunes made and dreamed to be made.” In this context—a frenzy of activity, dreams of great fortunes, and fears of bubbles and busts—part of the article’s appeal is its tone of understated pragmatism. It is not normative, nor does it claim to provide a universal solution. Intergalactic financial regulation does not exist, and the article is restrained even in identifying a unified European solution. Its last paragraph concludes that uniformity in Europe might very well be desirable, but ends with this final sentence: the “European legislator is, however, not known for his speed.” Ultimately, the article’s value is not in providing a solution, but rather in mapping the problem and the beginnings of regulatory responses.
In a world where secret meetings and resulting agreements seem particularly suspect, it might be tempting to think that the growing norm of transparency might keep the world a more harmonious place. Woodrow Wilson famously extolled the virtues of “open covenants of peace, openly arrived at….” Ashley Deeks, in her recent article, A (Qualified) Defense of Secret Agreements, asks us to think again of this norm and dictum. Her article is one I like a lot, and I hope others active in the study and shaping of international law and international relations do as well.
To be sure, secret agreements, Deeks reminds us, have done much to undermine international stability. The exposure of the Sykes-Picot Agreement—carving the Ottoman Empire into British and French spheres of influence with certain gains for Russia—remains good evidence among many in the Middle East that all past, current, and future interventions by US or European countries are driven by ulterior, territorial motives. Agreements between the Obama administration and regimes not particularly well-known for their strong human rights records have expanded the practice of extrajudicial killing through drones and other technologies. Additional contemporary examples might be the “Trump Tower meeting,” the “secret” US-Israeli agreement to broadly destabilize Iran, a covert agreement giving Russia free hand in Syria.
Yet Deeks also ably illustrates the usefulness and necessity of secrecy for the promotion of partnerships and policies that ultimately make the world safer. Her methodology centers around evaluating secret agreements’ objectives that are either consistent or inconsistent with the United Nations Charter as the U.S. has generally interpreted it. Arms control treaties are facilitated by the ability to disclose numbers and locations. Secret intelligence sharing arrangements are understandably so (and present less of a problem for democratic accountability) because they are built on already legally-sanctioned secrecy/classification laws in participating countries (the Five Eyes agreement among the United States, United Kingdom, Canada, Australia, and New Zealand plays a recurrent, illustrative role).
The most substantial contributions of the article are those of classification and analysis. Deeks identifies five major categories of secret agreements: intelligence cooperation, military cooperation, nuclear weapons issues, conventional-weapons-related use restrictions, and economic commitments. She assesses them for the discomfort they should or should not cause those ultimately concerned about the objectives of international institutions (taking the U.N. Charter as representative) and the necessity for cooperation and coordination in the international competitive states system.
Deeks is forthright about the methodological difficulties her project poses. Secret agreements are difficult to study because they are, well, secret. Yet it is because they are so obscure that Deeks’s contribution is so valuable. Disrupting what she concedes is an understandable stigma, she argues that it is possible to work through the circumstances under which secrecy is consistent with, rather than inconsistent with, democratic objectives and/or international stability. Deeks provides at the very least a hard-nosed effort at doing so with a payoff for scholars and policymakers alike.