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The Italian Contribution to Comparative Studies of Multilevel Governance

Erika Arban, Giuseppe Martinico, & Francesco Palermo, Federalism and Constitutional Law: The Italian Contribution to Comparative Regionalism (2021).

Italy is one of the most fascinating case-studies of both modern state-formation and the management of territorial pluralism in the world. Massimo d’Azeglio, Prime Minister of Sardinia from 1849 to 1852, announced after territorial unification in the nineteenth century – “We have made Italy. Now we must make Italians.” This elegant aphorism encapsulates the entire discourse and practice of classical modernist nation-state building that has underpinned the creation of the post-World War II global order. Italy itself established its contemporary constitutional model of territorial pluralism in this period and has since evolved in intriguingly asymmetric, incremental, pragmatic, and imperfect ways. For other democratic countries where territorial pluralism is the foundation of the state and the central fact of politics and public law, the study of almost every dimension of the Italian model pays rich dividends. However, much of the more sophisticated literature on Italian constitutional politics has so far not been in English, the lingua franca of comparative constitutional studies. As a result, even though a major proportion of the post-Cold War era’s intensification of transitional constitution-making has concerned the resolution of territorial conflicts, it is fair to say the Italian experience has featured very little as a useful comparator.

The recent collection of essays edited by Erika Arban, Giuseppe Martinico, and Francesco Palermo, Federalism and Constitutional Law: The Italian Contribution to Comparative Regionalism, fills this longstanding lacuna with aplomb. In addition to the three editors, the book brings together a wide range of law and politics expertise to describe, analyse, and critique the historical, cultural, normative, and institutional dimensions of Italian regionalism. The structure allows for comprehensive coverage, and each chapter yields engaging discussions replete with detail and nuance, yet without overwhelming unfamiliar readers with esoterica. The book meets and exceeds the editors’ aims of situating Italy within the field of comparative federalism and regionalism studies, by identifying both exportable strengths as well as cautionary lessons and by bringing law and politics into conversation in expounding the Italian experience.

The opening chapter with its compact yet detailed account of the constitutional history of Italian regionalism will be welcomed by anyone wanting to understand the context before delving into its institutional and normative characteristics. It introduces towering figures like Gaspare Ambrosini, comparable to his great contemporary Sir Ivor Jennings in the English-speaking world as a scholar-practitioner with a decisive influence on the course of history. In the other chapters, the unique institutional and normative features of the Italian model, such as its complex asymmetry, and its conception of subsidiarity and loyal cooperation, are explained extremely well. Individual chapters within the volume consider aspects that are otherwise read in disciplinary silos: for example, discussion of the political party system or inter-governmental relations, often the concern of political scientists only, sits alongside analyses of adjudication and constitutional jurisprudence, traditionally the domain of lawyers.

In all these ways the book succeeds admirably as an introduction to Italian regionalism for researchers, teachers, and students, as well as the general reader. It will serve as an excellent resource for any university course on comparative federalism, or even a self-standing short course on Italian regionalism. And it will be invaluable to constitution-making practitioners in the field, especially those who grapple with complex cases of asymmetric territorial pluralism which need a federal-type constitutional structure, but where, for various reasons, full or explicit federation might also be resisted.

The final chapter draws out some useful comparative lessons from the Italian model. In addition to these, two interrelated matters might be further pointed out. The first is that the project is located squarely within the terms and frameworks of the existing discourse of comparative federalism, which, from the days of Wheare and Watts, has been primarily concerned with debates about formal institutional classification. Within these terms, the book advances fascinating discussions about how and why the Italian case is a species of regionalism within the federal genus. This exegesis will no doubt interest those to whom the taxonomic debate is important (and there are still sound reasons why it is important).

But it can fairly also be argued that this is something of a cul-de-sac for both the practice and the theory of comparative federalism and constitutional law. In the world of practice, both in federal governance and federal constitution-making, formalist debates are often an artificial luxury. More consequentially, in deeply divided societies, meanings of formalist models have a tendency to get over-simplified and over-determined in the heated scrimmage of political claims and counter-claims and then instrumentalised as partisan weapons between antagonistic groups. Perhaps a lesson of Italian regionalism is that avoiding the unitary/federal dichotomy might sometimes be useful, this avoidance in fact aiding the possibilities of discrete formal classification for non-binary models. But the more important paradox thrown up by the experiences in deeply divided societies is that, by highlighting the performative salience of classifications, they also demonstrate the definite limits to the utility of classification.

One way of resolving this otiose problem is to reorient the focus of analysis from the institutional form of federal government to the underpinning constitutional theory of federalism. The problem with the classificatory method is that in fixating so heavily on institutional shapes and forms of federal-type arrangements, it leaves largely unexplored and unchallenged the metaconstitutional principles on which the modern constitutional state itself rests. Those modernist principles are predicated on a unitary logic of centralisation and homogenisation, and are, especially, monistic on the collective identity of the demos and essentialist on the question of sovereignty. This is not a satisfactory or even an adequate analytical and normative toolbox with which to approach territorially plural polities or to account for their constitutional praxis. Thus we need to understand federal constitutionalism as a unique process, categorically distinct from non-federal constitutionalism. Constitutionalism is the process by which political power is translated into legal authority. Federal constitutionalism is about how that process takes place in states in which their fundamental internal territorial pluralism is both the foundational political fact and the metaconstitutional normative imperative. Only if we understand the relationship between federalism and constitutionalism in this way can we provide a full account of how federal constitutionalism deals with each core task and subject of constitutional democracy in its own way.

Throughout Arban, Martinico, and Palermo’s volume, these tensions crop up with tantalising frequency but without focused attention. Perhaps a separate theoretical chapter might have been dedicated to exploring these issues. But this is less a criticism of the book, and more a suggestion for how we can engage with the stellar introductory work done by the contributors to this volume. They have succeeded in telling an engaging story about Italian regionalism and made a compelling case why it should be on the centre-stage of comparative studies.

Cite as: Asanga Welikala, The Italian Contribution to Comparative Studies of Multilevel Governance, JOTWELL (January 17, 2022) (reviewing Erika Arban, Giuseppe Martinico, & Francesco Palermo, Federalism and Constitutional Law: The Italian Contribution to Comparative Regionalism (2021)),

Gender, Populism, and the Constitution

Partly catalyzed by the #MeToo movement, there has been a renewed and re-energized interest in the intersection of law and gender in the past couple of years. Legal scholars, including critical scholars on gender, have long worked to critique discriminatory aspects of law, and women’s rights advocates have tirelessly sought to bring about greater gender equality for all around the world. Law and gender not only highlights abuses of power and crimes against women and other marginalized sexual groups but also asks how gender discrimination continues to hamper the development of women. And there are increasing calls from academics, policy-makers, and rights advocates for greater constitutionalization of gender equality. This renewed focus is to be welcome, in my view. Our conversations on law and gender should permeate all aspects in which law regulates society, and vice-versa.

One reenergized area of debate is a new orientation to gender and two other interrelated phenomena – populism and nationalism. In The Personal Is Political: The Feminist Critique of Liberalism and the Challenge of Right-Wing Populism, Gila Stopler takes on this important topic in an impressive and thought-provoking manner. She points out that the devotion of liberalism to structural claims of public-private, which continue to pervade how constitutional law is perceived, has now allowed “right-wing populism” to gain influence in several countries, with deleterious impact on the rights of women as well as that of other minorities. She places the blame on liberalism’s influence over constitutional design and discourse, critiquing Rawls’ political liberalism, primarily, and multiculturalism, secondarily, to reflect upon “structural and theoretical flaws within liberalism.”

Stopler builds upon existing feminist critique, most notably that of Susan Orkin’s, that the public-private divide obscured the politics of the oppression of women by relegating matters concerning gender into the ‘private’ sphere. Stopler thus argues that this liberal disregard of the feminist critique of the “deceptive nature” of the public-private distinction, which she says results in a refusal to intervene in the private, non-political sphere, has allowed the flourishing of prejudices and ideologies that are now sustaining right-wing populism and its attacks on the liberal state. The liberal state, in her account, is unable to counter illiberal and often discriminatory views because it has always neglected the private sphere. In other words, for her, essentially, the liberal state is hoist on its own petard.

Stopler’s article appears in an ICON debate, which includes several response articles that thoughtfully engage with her ideas. Among them, Marcela Prieto Rudolphy questions whether the problem lies with the theoretical structure of political liberalism (“PL”) in the first place. As she puts it, “the problem isn’t that PL tolerates illiberal ideas (as I have argued, it doesn’t) but that it is a theory for a society that hardly exists today—if it has ever existed.” As she further explains, as “PL relies on an idealized version of society, it is in some ways unresponsive to the real world, where unreasonable views exist and there is widespread disagreement about justice itself.” In other words, “PL’s flaw is that the achievement and maintenance of an overlapping consensus about justice are unrealistic possibilities in actual societies.”

Clearly, the debate about Rawls’ work is one that has occupied a large segment of scholarship on political theory and, to a smaller extent, constitutional theory. Political liberalism remains a cornerstone of scholarly debate on how religious diversity could be accommodated within a secular state. However, beyond the critique of Rawls and the over-idealization tendencies of theory, these current debates point to the need for greater attention to uncover embedded assumptions within constitutional law and its foundational components that themselves reproduce patriarchal structures and patterns of marginalization. Even while liberalism’s focus on the centrality of the individual, of human dignity, and of a limited constitutional state remain crucial values for today’s modern societies, its flaws have always been its insistence on a neutrality that cannot bring about the ‘glue’ for society and therefore leaves a vacuum for other more comprehensive doctrines to take hold of social imagination, first privately and then publicly. Indeed, at the end of the day, the current debate on gender, constitutionalism, nationalism, and populism must cause us to ask the question even more persistently—does the emperor have no clothes?

Stopler’s article has to be read as being situated within a scholarly movement that has cast new light on law and gender as scholars continue to unravel embedded assumptions in constitutionalism and related political concepts. For instance, in her short note on “Gendered nationalism and constitutionalism”, Ruth Rubio-Marín draws new attention to Yuval-Davis’ 1998 work on Gender and Nation, specifically the distinctions she draws between nationalist ideologies on citizenship that revolves around the Staatnation (specific states and territories), the Kulturnation (specific cultures or religions), and the Volknation (specific origin of the people and its continuation into the future). As Rubio-Marín points out, each of these nationalist ideologies intersect in real life, and “often translate to a denial or severe limitation of women’s rights and autonomy, as well as those of sexual minorities.” Other related work includes Chang, Loper, Malagodi, and Rubio-Marin’s forthcoming book on Gender, Sexuality and Constitutionalism in Asia, drawing attention for the first time in a sustained and systematic manner the intersection of law and gender in the region. This new wave of constitutionalism and gender scholarship is timely, not only for reinvigorating existing debates on law and gender, but also in putting deserved attention on emerging issues in law and gender. These works should reinforce a core feminist claim that the division between the personal and the political is arbitrary and simply cannot be sustained, and push scholars to develop new intellectual frames to better understand and navigate the relationship between law and gender.

Cite as: Jaclyn Neo, Gender, Populism, and the Constitution, JOTWELL (December 9, 2021) (reviewing Gila Stopler, The Personal Is Political: The Feminist Critique of Liberalism and the Challenge of Right-Wing Populism, 19 Intl. J. of Const. L. (2021)),

Reconceptualizing Constitutional Remedies

In his brilliant new book, The Collapse of Constitutional Remedies, Aziz Huq tells the tale of two eras for constitutional remedies in the US: a mid-century moment in which the Supreme Court created a new, expansive remedial architecture, and a late-century moment of remedial retrenchment. In the mid-twentieth century, Huq notes, the Court developed a “comprehensive” and “robust” four-part remedial architecture, involving injunctions, habeas relief, damages and the exclusion of evidence. (Pp. 87-97.) From the 1970’s onwards, the Court began to hollow out the force of these remedies, by erecting a range of barriers to their availability, including the need to show an “obvious wrong”, various immunity doctrines and evidentiary barriers. (Pp. 5-6, 103-32.)  Huq also notes the way in which this retrenchment has occurred selectively, along two different ‘tracks’1: one track, involving structural challenges based on federalism and separation of powers principles, has largely seen the availability of constitutional remedies hold steady; and another track, involving individuals’ claims to protection from state violence, has witnessed a large-scale retreat. (Pp. 16, 134.)

Huq further notes the immense consequences of this selective retreat: the continued availability of remedies in structural cases has made it harder to advance social state objectives or preserve the infrastructural state, whereas the retreat of remedies in other cases has made it harder to challenge the despotic state. (Pp. 15-16.) In America today, as in the pre and post-Civil War era, the despotic state also bears disproportionately on the poor and racial minorities. Failing to curb the despotic state, therefore, is part of why we see a current crisis of racial injustice and violence in America. Another part is failing to uphold and enable the infrastructural state to enact the programs and regulations necessary to achieve racial and economic justice. (P. 8.)

Lest this sound dry, or academic, rest assured that Huq tells this tale – of two remedial paths – with enormous pith and pathos. The book is written in an accessible trade-press style (and if you have ever taken a federal courts class and struggled with the intricacies of section 1983 remedies or habeas relief, you will know what a feat that is). And it has a truly engaging narrative arc: the tale of two remedial paths is told through the lens of real litigants, with moving stories, which Huq presents with customary literary flair. This is not just a book about federal courts and constitutional history. It is a story about how the Constitution and federal courts have failed the likes of Lula Brewer, Alexander Baxter and Sergio Adrián Hernández Güereca – black, homeless and Hispanic petitioners who have been harmed by agents of the despotic state but received no remedy from the courts.

Huq also provides a compelling explanation for why this tale has unfolded: it is a story, he tells us, of a relatively thin “framework like” constitution2 that does not put flesh on the bones of Art III, and what federal justice requires. This has also allowed for the flesh to be filled in in quite different ways over time, in ways that reflect the values of Reconstruction (the mid-century expansive remedial turn) and also the Founding (the early republic and late-20th century era of remedial retreat). Partisan politics and ideology, and the turn by the Republican party against the federal courts, also played a large role, along with bipartisan notions of institutional loyalty and docket-management on the part of Democrat-appointed judges. (Pp. 11-13.) Underlying all of this, Huq suggests, is also a misconceived notion of judicial independence and institutional role.

Perhaps the most interesting part of the book, however, is the suggestion by Huq that American economic and racial progressives should not be reading this story as one where the end is already written. Federal courts, Huq tells us, are not (yet at least) worth giving up on as potential instruments for progressive change, and/or constraints on the despotic state.

This is especially noteworthy at the current political moment, when the White House Commission on the Supreme Court is debating whether and how further to limit the powers and finality of the Supreme Court.3 And this, of course, reflects a widely shared belief on the left in the US that federal courts are beyond redemption as a source of progressive change, and instead likely to be a meaningful obstacle to such change.

Not so, or not so fast, says Huq. A new, or renewed, more expansive conception of constitutional remedies could offer an important tool for achieving racial and economic justice – by creating an additional check on current practices of racial and economic violence. (Pp. 14, 153.)

One wants, of course, to believe that Huq is right. Huq himself nods to the optimism, rather than University of Chicago-style realism, implicit in this argument. And one suspects it is indeed optimistic, though there is no telling what 4-8 years of a Democratic presidency could do to the composition and constitutional role conception of federal judges in the US. For this to occur, however, I suspect that one important coda to Huq’s own coda is needed. For the Supreme Court to realize the full promise of its mid-century remedial architecture, it will need to revisit the decision it made (by the thinnest of margins) to adopt a narrow view of positive rights under the Due Process and Equal Protection clauses of the 14th Amendment.

A world in which the Court checks the despotic state is undoubtedly one in which it adopts a broad approach to constitutional remedies. But it is also one in which the Court reverses its decision in Dandridge4 and De Shaney5 and endorses the idea of both positive and negative constitutionalism as a core part of America’s post-Reconstruction constitutional model.

There have been others at the University of Chicago, among other places, who have made the case for that kind of positive turn within the US.6 But connecting that work to this important new book by Huq seems necessary to realize the full promise of either project – as a serious academic project that aims to help create a more equal, less despotic America.

  1. On the idea of multiple remedial tracks, see especially the important new book on remedies by Kent Roach, Remedies for Human Rights Violations: A Two-Track Approach to Supra-National and National Law (2021).
  2. Rosalind Dixon, Constitutional Drafting and Distrust, 13 Int’l J. Const. L. 819 (2015); Rosalind Dixon, Constitutional Carve-Outs, 37 Oxford J. Legal Stud. 276 (2017); Rosalind Dixon and David Landau, Tiered Constitutional Design, 86 Geo. Wash. L. Rev. 438 (2018). See also, Mila Versteeg and Emily Zackin, Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design, 110 Am. Political Sci. Rev. 657 (2016).
  3. Presidential Commission on the Supreme Court of the United States, The White House.
  4. Dandridge v. Williams, 397 U.S. 471 (1970).
  5. DeShaney v. Winnebago County, 489 U.S. 189 (1989).
  6. Cass R. Sunstein, The Partial Constitution (1993). See also, Adrienne Stone and Lael Weis, Positive and Negative Constitutionalism and the Limits of Universalism: A Review Essay, __ Oxford J. Legal Stud. __ (Apr. 21, 2021).
Cite as: Rosalind Dixon, Reconceptualizing Constitutional Remedies, JOTWELL (November 11, 2021) (reviewing Aziz Z. Huq, The Collapse of Constitutional Remedies (2021)),

Non-refoulement as a Peremptory Norm of International Law (Jus Cogens) in the Age of COVID-19

Evan J. Criddle & Even Fox-Decent, The Authority of International Refugee Law, 62 Wm. & Mary L. Rev. 1067 (2021).

The Evans have done it again. After redefining the legal and analytical concept of jus cogens (peremptory norms of international law) as a species of fiduciary duty the state owes to human beings within its control in A Fiduciary Theory of Jus Cogens, Evan J. Criddle and Evan Fox-Decent have taken their novel thinking to tackle the extraordinarily urgent issue of non-refoulement under international law in the midst of the COVID-19 pandemic in their recent article The Authority of International Refugee Law.

Non-refoulement is the international legal duty to refrain from returning refugees to territories where they face a serious risk of persecution. While international law firmly places the duty of non-refoulement into the jus cogens camp in some scenarios, such as where the refugee faces a substantial risk of torture, positive and customary law are more ambivalent in other areas. For example, the Convention Relating to the Status of Refugees explicitly allows states to deny protection on a case-by-case basis when “there are reasonable grounds for regarding [a particular refugee] as a danger to the security of the country.” This hesitancy to formally and absolutely prohibit non-refoulement in positive international law raises serious obstacles for Criddle and Fox-Decent’s argument that non-refoulement should be considered a jus cogens norm, for a key feature of such norms is that they are non-derogable. Similarly, the very practice they seek to criticize—refoulement based on COVID-19—reflects a degree of state practice, undercutting the formation of customary international law.

Here it is important to emphasize a few points. One, the phenomenon that international law prohibits some practice that states nonetheless engage in is a familiar one to international lawyers. Thus, there is a clear prohibition on torture, yet states continue to torture. But this noncompliance does not necessarily invalidate the prohibition on torture in much the same way that driving above the speed limit does not invalidate the speed limit. Two, as I read Criddle and Fox-Decent, they are arguing for the emergence of non-refoulement as a jus cogens norm. And in this respect, I take their project to be one of principally normative engagement. Three, and relatedly, for better or worse international law often exhibits a symbiosis between what the law is and what the law should be, creating a recursive feedback loop that contributes to the formation and contours of a particular norm.

Against this backdrop, a theory of a norm can take on immense practical significance if used to justify the existence and exercise of that norm. And it is in this respect Criddle and Fox-Decent excel. For they have developed an innovative and persuasive approach based on what they call a “fiduciary” and “dual commissions” theory of international refugee law. Under these theories a state is both a fiduciary to those over whom it exercises control, and a fiduciary to the international legal system at large. Importantly, its duty to the international legal system often (always?) coincides with the multilateral practice of other states. Thus, while territorial sovereignty still reigns supreme, states also have fiduciary duties to regulate trans-border phenomena like the global environment that touches all of their territories. Should one state unilaterally claim authority to do so, it would signal a breakdown in the international legal system of coequal states. Similarly, should one state claim to regulate only its own environment, but do so in a way as to create substantial spillover effects on other states, the “system” similarly would weaken. Applying this way of thinking to refugee law, violating the duty of non-refoulement looks way worse. For it renders human beings—otherwise subjects of international law—illegal, or, perhaps more accurately, outside the law based on their very existence, relegating them to a state of nature. In other words, it punches holes in international law, making it look less like a coherent and comprehensive system of rules to regulate global behavior and more like a piece of Swiss cheese.

Cite as: Anthony Colangelo, Non-refoulement as a Peremptory Norm of International Law (Jus Cogens) in the Age of COVID-19, JOTWELL (October 13, 2021) (reviewing Evan J. Criddle & Even Fox-Decent, The Authority of International Refugee Law, 62 Wm. & Mary L. Rev. 1067 (2021)),

Empire’s Residue

Paul F. Scott, The Privy Council and the constitutional legacies of Empire, 71 N. Ireland Legal Q. 261 (2020).

On July 1, 1997, sovereignty over Hong Kong was transferred from the United Kingdom to the People’s Republic of China, and, so the story goes, the sun finally set on the British Empire. Except it didn’t. As Paul Scott masterfully explicates in The Privy Council and the constitutional legacies of Empire, the Empire endures, both in terms of ongoing control over Overseas Territories unlikely to become independent, and in the retention of formal mechanisms of constitutional governance which hide this imperial residue from the domestic constitutional order.

Scott’s article is part of a symposium edition of the Northern Ireland Legal Quarterly, entitled “The Constitutional Legacies of Empire.” This broader project is of a piece with comparative and global constitutionalism’s increased—and important—focus on colonialism and decolonization. For example, in an editorial in March 2020, the editors of Global Constitutionalism charged constitutional scholars to “decolonise constitutional law” through “a commitment to analyzing the colonial legacy in constitutional formation, the contemporary rights regime, and international public law, from both theoretical and historical perspectives.” Scott turns a critical eye on the British constitution itself and calls for a reckoning “with the legacy, and indeed the ongoing reality, of the British Empire.”

He opens by describing the territorial residue: fourteen Overseas Territories (OTs) whose position in the UK’s constitutional order both “exclude[s] them from constitutional consciousness,” and even “mislead[s] as to their constitutional status.” These OTs are without representation in the Westminster Parliament, which nevertheless has ultimate legislative authority over them, and though they are “‘neither foreign nor Commonwealth,’” they are under the purview of the Foreign and Commonwealth Office (a successor to the Colonial Office), not the Home Office.

This imperial twilight is managed by the Privy Council, a “black hole”, in Scott’s words, of the British constitution and the reason that “the UK is able to remain an Empire without being required to acknowledge that fact directly within its constitutional order.” Scott paints a picture of an institution shrouded in mystery—one that works a subterfuge, allowing the UK to maintain a domestic and an imperial constitution simultaneously. And he bemoans the lack of critical attention to the Privy Council paid by domestic constitutional lawyers, arguing that scholars must engage with its anomalies in order to confront, in turn, both the UK’s imperial past and its “ambiguous imperial present.”

The Privy Council has ancient roots; its earliest incarnation, the Curia Regis, emerged in the aftermath of the Norman invasion. The Privy Council advises the Sovereign, and there are over 600 Privy Counsellors, including members of the Royal family. As Scott notes, the list on the Privy Council’s website provides no information about individual members of the Council, making it almost “impossible” to figure out “who many of these people are, and why they have been appointed to the Council” without extensive research. Although some Commonwealth countries appear to be represented, there is no obviously “direct or systematic representation” of the OTs.

The Privy Council has both a judicial and legislative role in governing the OTs, presenting what Scott calls a “substantive continuity” with the imperial constitution. The Judicial Committee of the Privy Council is well known, and its ongoing jurisdiction as the court of final appeal for a number of Commonwealth countries (both monarchies and republics), is an obvious link to Britain’s past Empire. But it retains jurisdiction over the OTs, and, as Scott points out, in some years, “such cases represent[] more than a third of those decided by the JCPC.” Scott argues that if these cases arising from the OTs were to be handled by the UK Supreme Court instead (as presumably would befit a domestic jurisdiction), it might force an acknowledgment of the “ongoing imperial nature of the UK.” It is possible that OT cases could account for upwards of 10 percent of the UK Supreme Court’s work in a given year and would receive the publicity attending decisions of that Court. (The JCPC for example does not have its own Twitter feed.)

The legislative role of the Privy Council also “disguises the substantive reality whereby the government of the UK legislates . . . for a residual empire.” Scott explains that, although Parliament retains a formal power to legislate, in practice law is made for the OTs through the Queen in Council. In operation, this is done by the Lord President of the Council and three other members (current Government ministers who are themselves Privy Counsellors) in the presence of the Queen. Scott criticizes the two primary forms of legislation promulgated as diverging in important ways from expectations under the domestic constitution. Statutory orders in council do not receive “the normal processes” of parliamentary scrutiny, and prerogative orders in council can escape publication and come into force without being seen by Parliament at all. Scott is careful to note that the number of prerogative orders in council is likely small, but quantifying their existence is complicated by inaccessibility. And the underlying problems of principle remain: a lack of democratic accountability and even a threat to “basic standards of the rule of law.”

Scott’s thoughtful study makes an important contribution to the study of constitutionalism and empire. In shining a light onto the Privy Council, Scott argues that it provides “cover for practices that the domestic constitution would rightly reject.” He does not take the final step in his article, but it seems a short distance to the claim that the imperial residue works to undermine the core democratic commitments of the British constitution itself. In this Scott echoes the work of American scholars confronting U.S. constitutional history. In both cases, an old but still-relevant story: power corrupts, and imperial power perverts.

Cite as: Erin F. Delaney, Empire’s Residue, JOTWELL (September 9, 2021) (reviewing Paul F. Scott, The Privy Council and the constitutional legacies of Empire, 71 N. Ireland Legal Q. 261 (2020)),

Urban Constitutionalism

Ran Hirschl’s City, State: Constitutionalism and the Megacity (hereafter, City, State) addresses a significant gap in the constitutional law literature. Cities are economically, politically and culturally important and their importance will only grow. (P. 8.) Yet, Hirschl argues, constitutional theory and practice have not kept pace. Constitutional law scholarship does not have the “conceptual language and constitutional categories” (P. 10.) to account for the rise of cities. And constitutional orders typically assign cities a subordinate status, “as ‘creatures of the state’, fully submerged within the Westphalian constitutional framework, and assigned limited administrative local governance authority.” (P. 10.) City, State diagnoses this neglect and offers proposals for how constitutional orders can address it.

The Introduction sets the stage for the arguments that follow. Hirschl describes the rise of cities and the policy challenges posed by this rise. Among the most striking trends he identifies is the change in percentage of the world’s population who live in cities: “In 1800, 3% of the world’s population lived in cities. In 1950, less than 30% did; by 1990 43% of us were city dwellers. By 2019, this proportion has grown to 56%.” (P. 1.) Seventy percent of the world’s population is projected to live in cities by 2050. (P. 2.) These raw numbers tell only part of the story. The distribution of growth is uneven: “about 9 of every 10 urban dwellers since 1960 reside in Asia, Africa or Latin America.” (P. 4.) The rise of megacities—defined variously as cities with more than 5 or 10 million—has been similarly vertiginous. In 1950 New York was the only city in the world with a population of 1 million. By 2018, 33 cities had populations of at least 10 million. And studies predict that there will be cities with populations of 50–100 million in the next century. (P. 6–7.) These demographic changes create policy challenges. In today’s cities, poverty is concentrated and extreme, public health is threatened, and the environment degraded. (P. 5.) Hirschl further identifies problems that flow from cities’ “constitutional non-status,” including deficits in democratic representation and an absence of jurisdictional autonomy. (P. 9.)

With this context set, Hirschl turns in chapter one to flesh out his claim that cities are neglected in constitutional law. He provides a tour d’horizon of how cities have been considered in political theory, the social sciences, urban planning and innovation studies, journalism, and international and global law scholarship. He contrasts this vast body of scholarship with the paucity of writing in the field of constitutional law and criticizes the field’s focus on the state. Hirschl then turns to describe briefly how constitutions around the world describe cities. He closes the chapter by describing “neo-secessionism”, which he defines as “an explicitly counter-convergent mode of response to various globalization trends, constitutional or otherwise.” (P. 41.) He notes that although neo-secessionist movements around the globe have focused on “the local” they have not identified this concept with the “the urban”, at least in part, because “cities lack the constitutional power to bring their own local interests to the fore.” (P. 48.)

Chapter two describes the subordinate status of cities in the Global North. Hirschl surveys the relevant bodies of positive law in the United States, Canada, Australia and several European countries. He contrasts how the status of cities is debated in litigation in North America with the way that “megacity discussion in Europe is largely taking place in central government and policy making circles.” (P. 101.) Yet despite these differences, argues Hirschl, the constitutional orders of the Global North are united in their neglect of cities.

Chapter three provides a counter-point to chapter two. Hirschl describes innovations in Asia, Latin America and Africa that create constitutional space for cities, and he attributes these changes to the relevant polities’ need to respond to rapid changes in their urban environments, their constitutions’ amenability to change and specific alignments of “political power holders, national and subnational governments’ interest.” (P. 104.)

Hirschl finds in Japan, Korea and China examples of megacities being developed “economically and politically, as a means of nationwide modernization, economic transformation, and global branding.” (P. 104.) For example, a series of national government decisions resulted in the Metropolis of Tokyo’s being given the status of a prefecture in 1943. Moreover, several provisions of Japan’s post-war constitution protect the Tokyo Metropolitan Government’s fiscal and regulatory autonomy. (Pp. 105–06.) As a consequence, approximately 82% of Tokyo revenue is generated from local taxation (P. 106) and the metropolis is at liberty to pursue progressive policies that diverge from those of the national government. (P. 107.) Hirschl concludes that the national government, by granting Tokyo a significant measure of constitutionally protected autonomy, has harnessed “the city’s size and stature to stimulate national economic development and enhance the nation’s competitiveness and both regionally and globally.” (P. 108.)

The evidence of cities benefitting from constitutional autonomy elsewhere is mixed. In South Africa, the 1996 post-Apartheid Constitution granted municipal governments in major urban centres significant regulatory and fiscal autonomy. (P. 129.) Municipal governments are further entitled to an equitable share in nationally raised revenue in order to “provide basic services and perform the functions allocated to them.” (P. 130.) Hirschl contrasts the South African case with those of India and Brazil, where, because of confluences of national political factors, the constitutional status of cities has not consistently yielded on-the-ground autonomy. Hirschl closes the chapter by surveying the cases of Buenos Aires, Mexico City, Nairobi, Cairo and Dhaka in order to “illustrate the significance of political shifts in explaining shifts in national governments’ willingness to bolster the constitutional status of cities.” (P. 133.)

Chapter 4 looks at means of enhancing the power of cities, outside of granting them constitutional status. Hirschl first examines how international networks of cities have achieved significant gains in environmental protection by committing their members to climate change mitigation plans (P. 153) and by influencing transnational and international policy. (Pp 153–54.) Hirschl then turns to various cities’ attempts to protect human rights and promote social inclusion. These efforts range from city-level rights charters, such as the Montreal Charter of Rights and Responsibilities, to declarations committing cities (e.g., San Francisco) to international rights instruments (e.g., the Convention on the Elimination of All Forms of Discrimination Against Women), to the creation of city-level human rights bodies (e.g., New York City’s Commission on Human Rights). (Pp 158–65.) Hirschl concludes the chapter by discussing various urban citizenship initiatives, including municipal identity cards, that aim to recognize the affiliation residents (including undocumented migrants) have with their cities and formalize the ways that cities regulate their everyday lives. (P. 167.) Throughout the chapter Hirschl praises these various attempts to increase the power of cities, while noting that each initiative falls short. Because most cities in the world do not have constitutional status, Hirschl argues, they ultimately cannot wield effective political power.

Chapter 5 offers a variety of ways of rethinking the constitutional status of cites. Some of what Hirschl offers takes the form of concrete proposals. He proposes: (i) redesigning electoral systems to address the systematic under-representation of urban voters (Pp. 179–81); (ii) giving “enhanced political and constitutional voice to more vulnerable residents of megacities in the Global South” (P. 175); and (iii) implementing fiscal equalization measures that would reduce economic inequalities within metropolitan regions. (Pp. 213–19.) Chapter 5 also provides policy diagnoses. For example, Hirschl argues that because cities lack constitutional status—and thus do not have the regulatory capacity to bargain on more equal terms with corporations—they are overly deferential to big business. (P. 183.) In a similarly diagnostic vein, Hirschl argues that global policy challenges, including climate change and economic inequality, can only be effectively addressed if cities have constitutionally guaranteed powers to, for instance, build public housing that is adequate to their populations’ needs (Pp. 192–94) and develop infrastructure that will protect residents from climate change’s most devastating effects. (P. 196.) Hirschl concludes the chapter by challenging theorists to develop constitutional concepts, such as subsidiarity and “community standards,” in order to give metropolitan governments the constitutional powers they need to safeguard the distinctive “super-diversity” (P. 226) that characterizes the modern metropolis.

City, State: Constitutionalism and the Megacity is a magisterial work: bold in its ambitions and sweeping in its coverage. With it, Hirschl has seeded the field of urban constitutionalism. I am confident that as the field flourishes, scholars and practitioners will have occasion, time and again, to draw inspiration from his insights.

Cite as: Hoi Kong, Urban Constitutionalism, JOTWELL (July 30, 2021) (reviewing Ran Hirschl, City, State: Constitutionalism and the Megacity (2020)),

Rethinking Responsibility for Refugees

T. Alexander Aleinikoff & Leah Zamore, Arc of Protection: Toward a New International Refugee Regime (2019).

T. Alexander Aleinikoff and Leah Zamore’s compact-but-ambitious new book, The Arc of Protection: Toward a New International Refugee Regime, seeks to transform the international refugee system by proposing a set of legal reforms centered on redistributing responsibility northward, increasing mobility, and better enforcing rights. The authors’ reform vision was developed through decades of research and practice experience.

The legal-political discourse on refugees in the United States focuses largely on disputes over quantities and definitions. How many refugees should be admitted each year: 50,000, 125,000, or (as in fiscal year 2018) 62? Should gang- and domestic-violence be considered persecution and thus valid grounds for asylum? The ways in which these issues are resolved can mean life or death for many displaced people. But even granting all of the reforms that domestic refugee advocates seek would protect only a small fraction of the world’s forcibly displaced. The great majority of the approximately 27 million refugees would still be trapped in poverty in the Global South – effectively confined to underfunded border camps or to urban areas – in either case, largely blocked from the formal economy and from effective redress of rights violations.

The authors therefore deserve credit for adding their voices to the growing set of scholars and practitioners arguing for more radical changes to the international system. The first part of the book documents how the international refugee protection system evolved through the twentieth century: Initially a system designed to substitute other states’ legal protections when a state withdrew its own protections from one of its nationals, it became one centered on ad hoc humanitarianism. The authors then identify a series of policy reforms. Their key proposals include expanding the scope of harms that trigger protection by moving away from “persecution” as the basis for entitlement to protection, bolstering the shared responsibility of the Global North vis-à-vis the South, and expanding third-state resettlement as a durable solution.

Aleinikoff and Zamore acknowledge that they are not the first to call for some of these changes. The more provocative aspects of their proposal, however, part ways with other elements of the so-called modern “liberal consensus” for reform. Most notably, the authors critique the emerging consensus of aiming to keep refugees closer to home. They take issue with views – such as those espoused by social scientists Alexander Betts and Paul Collier – who generally believe that mass re-settlement in other parts of the world is not politically feasible on a sufficiently large scale, and that integration into the economies and communities of the region will do the most good for the most refugees. In contrast, Aleinikoff and Zamore think that liberalized global mobility should be a centerpiece of any comprehensive plan. Refugees, they argue, should be afforded great latitude in their choices of where to relocate based on their cultural, community, religious, and labor preferences.

In their commitment to prioritizing mobility and choice, Aleinikoff and Zamore join those endorsing greater refugee self-reliance. But, and drawing a contrast with the liberal consensus, they caution against too much self-reliance, which underappreciates how vulnerable many refugees truly are. They are wary of what some would call neoliberal-oriented policies: approaches that put undue faith in deregulation, offer employment without robustly protected rights, and rely on other market-based solutions. As applied to financial and development programs in developing countries, the authors believe that these sorts of policies have performed poorly, and they see little reason to expect better results here.

Without taking a side in these debates, I was struck by the scope of the authors’ reform vision. Yet any such call for expanding global rights of entrance, mobility, and non-return, is bound to face questions of inequity: “Why is group X more deserving than group Y?” In that vein, I would appreciate hearing why those who take “necessary flight” (to use their proposed standard) should enjoy greater long-term immigration rights, freedoms, or subsidies than other non-privileged would-be migrants. Neither “persecution” nor “necessary flight” is a neatly binary concept; persecution and necessity exist in degrees. Many would-be migrants have suffered appreciable harms in their country of nationality— poverty, famine, disease, violence, or natural disasters. Most of them would, of course, make many positive contributions to their host society. But for many of these, their departure would be considered economic: neither strictly “necessary,” nor resulting from Refugee-Convention-style formal “persecution.”

It is unclear, therefore, why policy should provide dichotomous privileges, with those deemed to meet these amorphous legal thresholds having the national borders and checkbooks of the world opened to them, while those falling just short remaining trapped. Indeed, some refugee advocates oppose significantly expanding both the class of people receiving protection and the basket of benefits they receive, largely because doing either would dilute the very concept of “refugee,” backfiring and reducing public support for refugee-protection programs. Of course, this line-drawing critique is not new: for decades, the 1951 persecution standard has been criticized as creating an artificial and unjust dichotomy. Decades of global conferences, discussions, and scholarship have thus far not produced a politically workable substitute.

Despite not fully addressing all the issues it raises, The Arc of Protection adds much to the discussion about possible ways forward for the international refugee regime. I urge practitioners, scholars, and policymakers in the field read it and seriously consider its proposals.

Cite as: Kevin Cope, Rethinking Responsibility for Refugees, JOTWELL (July 1, 2021) (reviewing T. Alexander Aleinikoff & Leah Zamore, Arc of Protection: Toward a New International Refugee Regime (2019)),

Update of Jotwell Mailing Lists

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the International & Comparative Law section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

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Pizza, Pasta, and Gelato: The Legal Construction of “Made in Italy”

  • Jorge L. Esquirol, Credit Supports for Italian Specialty Products: The Case of Prosciutto and Long-Aged Cheese, 14 FIU L. Rev. 589 (2021).
  • Tomaso Ferrando, Gangmastering Passata: Multi-Territoriality of the Food System and the Legal Construction of Cheap Labor Behind the Globalized Italian Tomato, 14 FIU L. Rev. 521 (2021).
  • Helena Alviar García, Italian Coffee: Retelling the Story, 14 FIU L. Rev. 443 (2021).
  • Michele Graziadei, The Making of an Iconic Cheese: Mozzarella Di Bufala Campana D.O.P., 14 FIU L. Rev. 615 (2021).
  • Fernanda G. Nicola & Gino Scaccia, It’s All About the Pasta: Protectionism, Liberalization, and the Challenge for Quality and Sustainability of Made in Italy, 14 FIU L. Rev. 479 (2021).

In 2020, Jorge Esquirol organized a magnifico symposium, “Made in Italy: The Law of Food, Wine and Design,” dissecting the laws that support the “Made in Italy” branding for the country’s most valued and globally exported products: espresso, mozzarella, olive oil, Parmigiano, pasta, prosciutto, tomatoes, wine, as well as design and fashion. This jot focuses on food.

Was your mouth watering just reading this list? Perusing the volume will both deepen and question your appreciation for Italian foods. You will learn fascinating facts about their histories, cultural valence, production conditions, consumption patterns, and regulation. All humans eat and most participate in the global trade of food, yet foodways (eating and culinary practices) continue to be tied to personal, cultural, and national identities. The collection of articles contributes to the burgeoning scholarship on international and comparative food law. Jotwell does not usually publish reviews of symposia, but this compendium is most powerful when taken in its entirety.  It is not any individual story of food, but it is the collection that is remarkable. Read as products of law, these foodstuffs raise deep and troubling issues of imperialism, unequal trade between North and South, labor exploitation, animal abuse, and environmental degradation.

For instance, if you thought of spaghetti as a symbol of dolce vita, you might reconsider after reading Fernanda Nicola and Gino Scaccia’s critical history of the regulation of pasta since the 1900s. The social importance of pasta in the Italian diet is such that it became a subject of legislation early on, including its composition, price, and conditions for import and export. But after Mussolini’s 1922 coup, fascist propaganda promoted pasta eating (before turning against it), launching a nativist “battle for grain” to make Italy self-sufficient in wheat.

Telling the story of how coffee exports became central to the Colombian economy in the twentieth century, Helena Alviar García scrutinizes the myth of “Italian” espresso. Positioned as an essential social ritual (and glorified as a harbinger of democracy), Italian coffee culture is also the result of colonialism, unequal global trade, and property regimes incentivizing land grabbing and deforestation. All coffee is imported to Italy and yet the global infatuation with gourmet and specialty coffee has benefitted Italy’s exports of roasted grains imported from Colombia, among other countries.

Italy may not grow coffee beans, but it is the second largest producer of tomatoes in the world after the United States. Turning to the interaction between spaces of legality and illegality in the branding of “Made in Italy,” Tommaso Ferrando focuses on trade law, competition law, and migration law. He points out the role of exploitative conditions of agricultural work (which sometimes approximate enslavement) and organized crime in the construction of the Italian passata (tomato sauce). Italy developed a criminal legal framework to address these violations, but it remains woefully underenforced, much like the global tomato chain ignores the migrant worker as an invisible, exploitable, and disposable means of production.

Michele Graziadei analyzes the role of intellectual property law in making mozzarella di bufala (buffalo milk mozzarella) an iconic cheese, one of the most beloved “Made-in-Italy” products. As key to this success, he emphasizes Italian and European geographical indication labels associating the product with a well-defined geographical area and a certified production method protecting it from competition. Analogously, Esquirol’s article shows that along with production norms, tax regimes, and other background rules, secured lending laws allowing specialty food products such as hams and cheeses to serve as collateral give a crucial edge to their producers. Meanwhile the farmed animals, the (often undocumented) migrant workers who milk and slaughter them, and their increasingly polluted environments are harmed by the lack of legal protections.

The contributors to this symposium do a terrific job of problematizing the idea that there is such a thing as “Italian” food, highlighting that a complex web of local, national, regional, and international laws and private ordering systems determine which foods are produced where and whether they will be considered “Italian.” Their intervention should be read as an invitation to conduct similar research projects on a wide range of foods and cuisines. In this spirit, I have written about French food Whiteness, that is, the use of food law and eating practices to reify and reinforce Whiteness as the dominant racial identity in France and elsewhere. Anyone interested in building the critique of French food through the lens of the law should consider this an open call for papers for a “Made in France” symposium to be held (why not?) in Paris when the health situation will allow it. In the meantime, bon appétit!

Mathilde Cohen, Pizza, Pasta, and Gelato: The Legal Construction of “Made in Italy" (June 31, 2021) (reviewing Jorge L. Esquirol, Credit Supports for Italian Specialty Products: The Case of Prosciutto and Long-Aged Cheese, 14 FIU L. Rev. 589 (2021); Tomaso Ferrando, Gangmastering Passata: Multi-Territoriality of the Food System and the Legal Construction of Cheap Labor Behind the Globalized Italian Tomato, 14 FIU L. Rev. 521 (2021); Helena Alviar García, Italian Coffee: Retelling the Story, 14 FIU L. Rev. 443 (2021); Michele Graziadei, The Making of an Iconic Cheese: Mozzarella Di Bufala Campana D.O.P., 14 FIU L. Rev. 615 (2021); Fernanda G. Nicola & Gino Scaccia, It’s All About the Pasta: Protectionism, Liberalization, and the Challenge for Quality and Sustainability of Made in Italy, 14 FIU L. Rev. 479 (2021)),

Clarifying the Legal Consequences of “Terrorism”

Pooja R. Dadhania, Paper Terrorists: Independence Movements and the Terrorism Bar, 108 Cal. L. R. 1733 (2020).

Conceptually, “terrorism” is complicated. Although a definition is simply stated – terrorism is the unlawful use of violence for political ends, usually against civilians – the “unlawful” component of the definition and the “civilian” component blur quickly. An attack by a non-uniformed independence fighter on a police station closely aligned with military operations treads the line. So does the civilian who is willing to give coded warnings to fighters when regime forces enter a neighborhood. One man’s terrorist is another man’s freedom fighter, or so they say.

Notwithstanding the legal gray zones, there are national and international legal regimes dedicated to stamping out the practice. Enter Pooja R. Dadhania’s Paper Terrorists: Independence Movements and the Terrorism Bar, which tackles a discrete, specific ambiguity in the law of terrorism and proposes a practical, reasonable, and immediate measure that can be taken to bring clarity to at least a thread of the far more intricate tapestry. Her article is one I like a lot, and it is one with which I encourage scholars of this difficult area of the law to engage.

Dadhania’s focus is immigration law, and the complexities caused by the “terrorism bar” used to prohibit U.S. entry to those who have committed unlawful violence. Created by the 1990 Immigration Act and expanded in the wake of the September 11, 2001 attacks, the terrorism bar in the Immigration and Nationality Act (INA) precludes any noncitizen who has engaged in “terrorist activity” from most immigration relief, including asylum. The breadth of the term “terrorist activity” in the INA is “staggering,” she writes, “capturing conduct that may not be commonly considered terrorism and that would include the conduct of American Revolutionary War soldiers” and irregulars fighting for independence in 1776.  In one vivid illustration Dadhania offers, an Eritrean applicant was denied for receiving physical fitness exercises and one rifle-shooting lesson from the forces fighting against Ethiopia during the then-as-yet-unsuccessful Eritrean war for independence.

The contribution Dadhania makes to this high-stakes debate is asking whether the applicant was working on behalf of an “independence” movement or whether it was an opposition movement. If the former, then both U.S. and international law permit immigration judges to determine that the applicant was engaged in lawful activities for a “state”. If the latter, the same activities would be “unlawful” as they would violate the law of the incumbent regime resisting the opposition movement.

Dadhania reviews the sources of the United States’ approach to the recognition of foreign states —from executive branch practice to the Restatement (Third) of Foreign Relations Law to the Foreign Sovereign Immunities Act to the act of state doctrine—to outline the possibilities, and sources of confusion, that now vex the application of the terrorism bar. After careful and detailed analysis, Dadhania recommends that adjudicators adopt the Restatement standard in the context of the terrorism bar to evaluate the lawfulness of a noncitizen’s conduct in furtherance of an independence movement. The Restatement bases recognition on “a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other states.”

The Restatement is particularly important because it incorporates the terms of the Montevideo Convention, which has been ratified by the U.S. and is broadly representative of either treaty or customary international law of nearly every country in the world.  The Montevideo Convention dates to 1933, when Central and South American states argued that there should be uniform international criteria for recognition of statehood as part of a broader effort to reject the dispute or opposition to their statehood by former colonial regimes. Montevideo Convention parties agreed to criteria that made it easier for other dependent states with limited sovereignty to gain international recognition. According to Dadhania, the choice between alternative (what she labels “recognition-based”) standards and the Restatement standard is ultimately a decision about which branch of government is most competent to apply the standard as well as the standard’s accuracy. “In the area of foreign relations or issues that are directly adjacent to foreign relations, the common sensibility may be that the executive branch is more competent than the judiciary to make such decisions. However, the inquiry is more nuanced in the context of immigration law,” and therefore the judiciary is better suited to 1) make the determination and 2) apply a standard not complicated by the executive’s perhaps conflicting interests. The Restatement standard is fact-intensive – a feature that lends itself well to judicial application.

It is important to recognize that Dadhania’s article doesn’t address other areas where the Department of Homeland Security may enter evidence for disqualification based on prohibited activities; it just covers the subset of “unlawful “activities that have caused so much confusion. As she notes, determinations that implicate foreign sovereign immunity, diversity jurisdiction, or the act of state doctrine may have external consequences because they affect not only private persons, but foreign entities as well since courts are either granting or denying rights based on statehood.

Dadhania’s solution is elegant and straightforward and deserves the attention of the U.S. government, the scholarly community, and the immigration bench.

Cite as: Sam F. Halabi, Clarifying the Legal Consequences of “Terrorism”, JOTWELL (April 28, 2021) (reviewing Pooja R. Dadhania, Paper Terrorists: Independence Movements and the Terrorism Bar, 108 Cal. L. R. 1733 (2020)),