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Remote Controls: Pushing the Boundaries of Asylum

A general consensus has formed that the status quo approach to the current refugee crisis isn’t working, even if there is little agreement on an alternative. UC San Diego sociologist David Scott FitzGerald’s excellent new book, Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers, is the latest academic press book by a social scientist (following, for example, Alexander Betts and Paul Collier’s Refuge) to explain what’s wrong with the global institutional framework for refugees and to propose a better way.

Over eleven chapters, FitzGerald presents a trove of evidence showing how many Western states use law and policy to deter (or simply shut out) would-be asylum seekers. These legal policies creatively flout the spirit of international law, even as they walk a fine line between formal compliance and violation. FitzGerald argues that, whatever their legality under international or domestic law, these non-entrée policies, what he calls remote controls, violate principles of humanitarianism. He therefore argues that civil society—including NGOs, journalists, lawyers, academics, and other citizens—should mobilize to end them. Refuge Beyond Reach is an important contribution to the ongoing conversation about how the existing global international and domestic framework is addressing (and is perhaps responsible for) the current crisis.

Perhaps the book’s primary contribution is identifying and analyzing a typology of these migration remote controls. Refugee-destination states use remote controls to prevent migrants from legally claiming asylum by preventing them from reaching their ports, shores, or other borders. FitzGerald uses medieval-era architecture metaphors for these five methods of remote control: cages (techniques, such as camps or military force, which keep migrants in a certain place); domes (restrictive visa policies that keep migrants from flying into the country without prior permission); moats (maritime zones in which the military intercepts approaching vessels before they reach the shore, or even territorial waters); buffers (adjacent countries or territories that agree to hold migrants to prevent them from reaching the border); and barbicans (special legal zones on the perimeters of a country that limit asylum rights). Each of these devices is designed in a way that flouts the spirit of international migration law—the 1961 Refugee Convention and its 1967 Protocol—while arguably meeting most or all of its formal requirements.

One mark of a good analytical framework is how well it explains future events. FitzGerald’s framework has already proved useful for analyzing policy developments since the book’s publication. The remote control now making the biggest headlines in North America is the so-called “Migration Protection Protocols” (MPP) (also known as “Remain in Mexico”). Refuge Beyond Reach does not address that program, as the book was published shortly after the MPP was rolled out in early 2019. (FitzGerald does briefly cover a similar, ad hoc practice from the 1980s. He also examines how Canada implemented a “Remain in the U.S.” program in 1987; the threat to waiting asylum-seekers there was not violence from gangs, but deportation to their home countries by U.S. officials.) MPP requires asylum-seekers who appear at southern border ports-of-entry to wait for their hearing dates in Mexican border cities, rather than entering and waiting in the United States.

“Remain in” policies are not a perfect fit for any of FitzGerald’s five remote controls, but I would categorize the policies as a kind of “buffer-lite.” In other words, they don’t physically or legally prevent migrants from initially reaching the territory and filing a claim for asylum (as cages, moats, and domes can). Instead, they act as both a time-delay “gate” and a deterrent. As a time-delay gate, they actually reduce the population of asylum-seekers by temporarily preventing asylum seekers from residing in the country, thereby preventing them from either joining the general population or relieving the state of the obligation to house (incarcerate) them. But the stronger effect is probably deterrence; migrants who have to wait for longer periods in uncertain or dangerous conditions may give up while waiting, or just not try in the first place.

Though some of them have been struck down by courts, the MPP and many of FitzGerald’s five remote controls are often carried out in ways that are formally consistent with international or domestic migration law. (See the recent litigation over whether the MPP violates the U.S. Refugee Act.) Indeed, Fitzgerald argues that “questioning [the controls’] legality is necessary but not sufficient,” because “[t]he question should not just be whether a policy is legal, but also whether it is good.” And humanitarianism, he says, “provides a moral framework for measuring whether a policy is good.”

Despite this emphasis away from legality, political scientists, lawyers, and policy-makers may want to learn more about the tradeoffs that FitzGerald’s humanitarian-driven proposals necessarily raise. One of the key challenges of treaty drafting and negotiations is the tension between robust regulation and enticing a large number of participants (the so-called “broader vs. deeper” tradeoff). Of course, as with other treaty obligations, the Refugee Convention and Protocol require states’ consent to bind them. (Some argue that the principle of non-refoulement is now customary international law, binding most or all states, but that point is controversial.) There is some evidence that the Refugee Convention and Protocol have caused some key states to develop and implement domestic refugee/asylum systems which wouldn’t exist but for the Convention.

Had international refugee law banned some or all of the five sets of remote-control strategies, surely many fewer states would have ratified or acceded. In fact, in 2015 the prime minister of Denmark (one of the first states to ratify the Convention), called on states to renegotiate the Convention entirely unless European Union officials stemmed the flow of refugees resulting from the Schengen area’s open migration system. Likewise, if there were serious claims that the MPP program violated international refugee law, it’s easy to imagine President Trump pulling the United States out of the regime entirely (an act likely within his sole discretion). Dismantling the U.S. Refugee Act, the federal legislation implementing the Convention, would be politically and institutionally trickier, but weakening it around the margins would likelier be easier without its underlying international mandate.

For refugee advocates then, the optimal strategy might not be to push for the strictest possible rules, but for the most protective rules that can be attained without driving states away from the global refuge regime entirely. Like other international regimes, it’s unclear where exactly that tipping point lies. FitzGerald implicitly raises this issue but leaves a full discussion for others.

As with many important contributions to current policy debates, Refuge Beyond Reach raises several new questions that it cannot fully address. It doesn’t need to; the book is a detailed, meticulously researched, and generally compelling account of a central flaw in the global response to the current crisis. Refuge Beyond Reach will surely inspire new research and more conversations among legal scholars, empirical social scientists, and policy-makers about the problems FitzGerald exposes and the solutions he suggests.

Cite as: Kevin Cope, Remote Controls: Pushing the Boundaries of Asylum, JOTWELL (March 16, 2020) (reviewing David Scott FitzGerald, Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers (2019)), https://intl.jotwell.com/remote-controls-pushing-the-boundaries-of-asylum/.

Foreign Judges on Constitutional Courts?

Rosalind Dixon & Vicki Jackson, Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts 57 Colum. J. Transnat'l L. 283 (2019).

Imagine a famous foreign jurist—say Richard Goldstone or Claire L’Heureux-Dubé—appointed to the U.S. Supreme Court, instead of (U.S. citizen) Samuel Alito, when popular criticism of citation of foreign law was at a fever pitch in the U.S. The outcry would have been swift and incendiary. Indeed, Ruth Bader Ginsburg and Sandra Day O’Connor received death threats for engaging with foreign law as they did. Yet for at least 21 jurisdictions (nearly all of them member states of the United Nations), foreign judges sit alongside citizen judges, helping to ensure the vibrancy of (sometimes recently established) democratic institutions, building confidence in the rule of law, and playing specific roles in ensuring judicial impartiality.

In Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, Rosalind Dixon and Vicki Jackson analyze the historical and functional reasons that these arrangements have arisen. With a focus on the democratic legitimacy of the practice, Dixon and Jackson concentrate on three jurisdictions—Hong Kong, Fiji, and Bosnia-Herzegovina—as they analyze the advantages, disadvantages, and factors that lead to relative success or failure of hybrid court efforts. Dixon and Jackson are attentive to the relevance of their subject, not only for the potential expansion of hybridization, but also for the legitimacy of comparative constitutional engagement generally (the article builds on their previous work on interpretive outsiders), even when all judges are citizens of a country’s constitutional court.

Their contribution is one I like a lot, and it will certainly shape important debates among comparative constitutional law scholars worldwide. For readers of Jotwell’s International and Comparative Law section, it is Dixon’s and Jackson’s analysis of the particulars of judicial selection—the who, how, and why—that may be of most interest. They argue the following are likely to foster more, rather than less, advantageous hybridization: the necessity of participation of foreign judges for legitimacy (real or perceived); extensive judicial experience and reputation; and domestic, rather than foreign, processes leading to selection. With respect to the latter, the relative number and influence of foreign jurists also plays a role.

Their case studies are detailed and illuminating. In Hong Kong, for example, the appointment of foreign judges helped assure commercial confidence in the city through the handover to People’s Republic of China rule, and their continuing presence has “maintain[ed] Hong Kong as a leading center for commercial dispute resolution, with all attendant economic benefits that can bring.” (P. 334.) Foreign judges are selected through appointment by the Chief Executive of Hong Kong on the recommendation of an independent commission composed of local judges, lawyers, and community members. In Fiji, “there is a need for foreign judges to serve on the country’s highest courts,” given that nearly all local lawyers have close links to the country’s (divided) political elite. Judges there are appointed by the President, on the recommendation of the Judicial Services Commission, following consultation with the Minister and Sector Standing Committee of the House of Representatives because they oversee matters related to the administration of justice.

In the Constitutional Courts of Bosnia-Herzegovina, by contrast, the President of the European Court of Human Rights appoints three foreign judges “after consultation with the presidency of B-H,” (P. 338.) Correspondingly, there has been greater internal resistance to the role of foreign judges there, especially by Serbian elites.

Composition matters too. A panel of three Australian judges determined that a 2006 seizure of power in Fiji was unlawful; they—along with the entire judiciary—were dismissed. In Hong Kong, foreign judicial participation is typically limited to one member of a five-member bench. On the Constitutional Courts of Bosnia-Herzegovina, foreign judges comprise three of the nine total members of the court. “All other things being equal,” the authors note, “a mix of local and foreign judges is likely to face lower legitimacy concern than an all-foreign bench.” (P. 341.)

While the article is primarily aimed at structural factors (selection, composition, and foreign influence), Dixon and Jackson are clearly aware that personality and temperament matter. Even foreign judges may be more or less willing to engage the local bar, undertake study, or share aspects of common constitutional traditions. If foreign judges undertake their responsibilities “with wisdom and sensitivity to local facts and circumstances (including socio-political context), they may have a better chance to increase the effectiveness and perceived impartiality of judicial decisions, whereas if they are insensitive to this broader context, or conversely too consistently deferential to local judges’ factual and legal judgments, they may undermine the knowledge and legitimacy benefits of having foreign judges.” (P. 343.) These idiosyncratic traits and behaviors are the most difficult to measure, and they appear to be a promising starting point for Dixon and Jackson’s next study.

Hybrid Constitutional Courts is a valuable contribution, not only for the comparative constitutional law literature, where it is likely to be situated, but also for scholars of constitutional design and judicial behavior. The authors clearly have some of the latter research in mind, and I expect that Dixon and Jackson will use their framework to design more extensive interview-based research on attitudes and behaviors of foreign judges participating in these hybrid roles. I look forward to it.

Cite as: Sam F. Halabi, Foreign Judges on Constitutional Courts?, JOTWELL (March 2, 2020) (reviewing Rosalind Dixon & Vicki Jackson, Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts 57 Colum. J. Transnat'l L. 283 (2019)), https://intl.jotwell.com/foreign-judges-on-constitutional-courts/.

“Legalish” Global Financial Regulation

In The Globalized Governance of Finance, David Zaring portrays an “emerging architecture” of financial regulation that lacks many of the traditional aspects of international law. There are no sovereigns or treaties or international courts. No heads of state or foreign ministers participate. Zaring’s key argument is that global financial regulation is nonetheless “a principled legal order founded on instruments of soft cooperation.” (P. 34.) Though full of institutions “ever-willing to claim that they are not lawmakers,” financial regulation is “hierarchical, procedurally regular, and politically supervised.” (Pp. 28, 100.) The regime is not precisely soft or hard law—it is “legalish.”

The book identifies “legalish” principles embedded in global financial regulation using specific examples of cooperation among global banking, securities, and insurance regulators. Key among these principles are reliance on regulatory networks and the use of techniques typical of administrative law. In Zaring’s account, global financial regulation works like both a network and “an administrative agency stretched across a global multilateral context.” (Pp. 6, 100.)

Both of these topics—administrative actors and legal networks—resist coherent description in a similar way. The institutions are many and heterogeneous, each with its own specific origin story and mechanics. The book meets this challenge by identifying ways in which the network is not entirely decentralized and horizontal, but rather is subject to some political coordination. The book also gracefully moves between the levels of specificity required to analyze such a system. It provides organizing principles, but it also digs into the details about major regulatory institutions in banking, insurance, and securities regulation, as well as identifying smaller financial networks that are often overlooked.

Zaring’s description of the Financial Stability Board (FSB) gives a sense of one of the book’s charms. The institution—a “vigorous regulatory middle manager”—must rely on “cajoling and peer review.” (Pp. 18-19.) To have a seat at the table at FSB plenary sessions, members must show up with a “gaudy cast of regulatory characters.” (P. 19.)

In a similar vein, Zaring captures something essential about the nature of “best practices” and whitepapers when he describes these as “offering regulators an attractive combination of casualness and detail.” (P. 27.) As these passages suggest, the descriptions throughout the book do not just point to the formal structures as evidence for the book’s basic thesis, but also convey a sense of the institutions’ flavor.

Regulators are the main players in Zaring’s account. The lawyers for the financial institutions occasionally make an appearance, but the big banks, insurance companies, and other private actors that are the subject of regulation and enforcement are not in the foreground. Perhaps a full administrative account of global financial regulation must ultimately contend with these players as well, but this may be a topic for other work.

The Globalized Governance of Finance is an expansive and, at times, colorful portrayal of the “legalish” realm of global financial regulation. It provides a coherent and modern account of the world that lawyers and institutions experience. It is well worth a read.

Cite as: Verity Winship, “Legalish” Global Financial Regulation, JOTWELL (February 14, 2020) (reviewing David Zaring, The Globalized Governance of Finance (2019)), https://intl.jotwell.com/legalish-global-financial-regulation/.

Why Does Constitutional Amendment Design Matter?

After an unprecedented social crisis, Chile is seeking constitutional change. This decision is quite extraordinary: though the Constitution contemplates amendment rules, Chileans have decided to create a new mechanism for approving constitutional change. The Chilean constitution was written during a military regime, and despite its many reforms, its legitimacy is sometimes questioned. Of course, its amendment rules are questioned as well. Nevertheless, this new procedure aims to respect the rule of law: Congress must first approve a reform of the amendment rules to allow constitutional change by means not previously established. After that, the process contemplates two referendums and an election. If this process fails to result in approval of the new Constitution, then the current one will remain in force.

This process raises many questions. For instance, if we have rules to change and amend our Constitution, why did we decide not to follow them? And if we agree to change the Constitution, what should the design of the new amendment rules be? What are the relevant principles, criteria, and institutions? In this scenario, Richard Albert’s book, Constitutional Amendments, provides valuable input.

Claiming that constitutional amendment is an unexplored field among constitutional scholars, Albert vindicates its importance. How we change the constitution is as important as its content. After reading Constitutional Amendments, readers recognize that the how and the what are not as separate as one might think: amendment rules are, indeed, part of the substance of a constitution.

As Albert explains, amendment rules may be seen from three different perspectives: formal, functional, and symbolic. Each has specific effects that reveal the importance of such rules. Formally, amendment rules can distinguish higher laws from ordinary legislation and make the former more difficult to change, with consequences for the stability of a country. Functionally, they can establish a process that serves a particular amendment purpose, bringing constitutional expectations in line with performance by checking the activity of courts or by promoting democracy. And symbolically, amendment rules can express certain values; by making some parts of the constitution harder to change, they unveil fundamental commitments of a constitution (and its country).

Albert also identifies a underexplored feature of amendment rules that I find particularly innovative: the “sociological legitimacy” that they provide constitutions. If the process whereby a constitution was amended is just, it is likely that the constitution will have credibility among the governed and that it will be ultimately accepted by them as authoritative and binding. This may partially answer my first question regarding Chile.

With remarkable breadth in compared experiences and deep knowledge of the details of the history of numerous constitutions, Albert illustrates some of the tensions that may arise when amending constitutions. The book is a continuous interrogation: every question opens another one. Throughout this exercise, Albert makes evident the importance of amendment rules. He starts asking “why amendment rules?” and gives reasons why countries give themselves rules for changing their constitutions even though they may never amend them. He continues by defining what an amendment is, and what it is not, by introducing the distinction between an amendment and a dismemberment.

Moving forward, Albert argues that empirical studies that rank constitutions based on their rigidity are insufficient because they fail to consider key elements, such as uncodified changes to formal amendment rules, popular veneration for the constitution, cultures of amendment, etc. In this way, Albert adds cultural and sociological elements to his constitutional analysis, a sometimes-forgotten dimension. The author also engages with unamendable rules and variations of unamendability, highlighting the strengths and weaknesses of different approaches. Near the end of the book, Albert digs deep into the constitutional design of several constitutions. Finally, he explores how constitutions display their amendments, along with the outcomes, implications, and problems resulting from the different methods of notating change. Albert concludes by offering guidelines for constitutional designers.

Throughout his book, Albert shows how different constitutional amendment rules have huge implications for the effectiveness of a constitution. One of the book’s main virtues is not in what Albert says, but in what he does not: it plants many questions in the reader’s mind and leaves their answers open. For instance, how should we determine or evaluate the various effects that the participation of institutions and other agents have in amendments processes? Or what role(s) should courts play? At a number of points, Albert mentions the active role that courts may have within a certain design. He does so when explaining the Conventional Theory (amendments must comply the constitution, if not, they are an illegitimate constitutional change) and its inspiration, the Theory of the Constituent Power (only the constituent power can make a constitution, not the constituted one). One of the implications of these theories is that someone has to determine whether an amendment complies with the constitution or not, and if it doesn’t, that authority can nullify the amendment. Typically, this would be a court. Albert shows how some courts, like the Supreme Court of India, have invoked the Basic Structure Doctrine in order to discard certain constitutional amendments. According to this doctrine, the amendment power is limited by what constitutes the nature of the constitution—its core commitments—even if the constitutional text itself does not limit it. When talking about unamendable rules and the different kinds of unamendability, the author illustrates how some courts have declared that specific rules are not susceptible to amendability, even though they do not have that character according to the constitutional text.

So, the role that judges sometimes play in the constitutional amendment processes is, in comparative experience, an important one. Is it exempt of risks? As Albert says, the courts’ power is susceptible to exploitation for political purposes. Does it have benefits? Maybe it is useful to distinguish whether a court is arbitrating procedural or substantive rules. In the first case, I believe, democracy is protected; in the second, democratic activity cannot be fully deployed, because it is anchored not only by what was once enshrined in the constitution, but also by a specific interpretation of that content. It sounds counterintuitive to say that the content of a constitution is allowed to be changed, but yet the change must be limited by that same content. The situation is made more complicated because constitutions are a system, meaning they must be coherent to be effective. But, is determining a constitution’s coherence a court’s duty? A different but relevant question is whether these processes (where courts have played an important role) are themselves sociologically legitimate. How are these doctrines of limitation and the courts that promulgate them perceived by the governed?

Albert engages only tangentially with the variety of agents that can be involved in a constitutional amendment process. It would have been interesting if he had included a chapter about the roles that the different branches of the state and that citizens play in those processes, their effects, and the tensions that can develop. Nonetheless, the author clearly achieved one if his key objectives: to inspire interest in constitutional amendment.

Constitutional Amendment is a book worth reading. It is complete and sophisticated, certainly a noteworthy contribution for scholars and constitutional designers. And, without a doubt, it is also a valuable asset for anyone interested in reflecting on the current process ongoing in Chile.

Cite as: Mariana Canales S., Why Does Constitutional Amendment Design Matter?, JOTWELL (January 14, 2020) (reviewing Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (2019)), https://intl.jotwell.com/why-does-constitutional-amendment-design-matter/.

Saving Constitutional Democracy from the Right (and the Left)

Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (2018).

The challenges of democratic backsliding and institutional resilience have recently exploded onto the agenda of research scholarship across the social sciences, especially in world and economic history, comparative politics, and constitutional law. Tom Ginsburg and Aziz Z. Huq’s How to Save a Constitutional Democracy is one of the most lucid and authoritative accounts in this increasingly crowded yet scholastically sophisticated field.

As with many other such recent treatments, the catalyst for the book has been the election of President Trump in the United States, and many others like him in varying degrees and styles of strong leadership across the world. The challenge these leaders pose for established assumptions about the nature of political order are fundamental, the book argues, and not simply a transient choice of ordinary democratic competition. In varying degrees, these leaders and the movements they lead challenge the values of political liberty and cultural pluralism, the principle of government limited by laws of general application, and the norms of behaviour that flow from the distinction between political power and legal authority.

The book explains the foundational (or aspirational) unit of the post-World War II international order—or “Liberal Constitutional Democracy,” as Ginsburg and Huq call it—and the alternative conceptions of statehood that challenge it. The core of the book, and the most interesting discussion within it, is the account offered by Ginsburg and Huq about how Liberal Constitutional Democracies sometimes collapse, or more often, decay. The book’s great strength is not only that it offers explanatory theories on all these questions, but that it sets out a practical agenda for institutional reform and political mobilisation, if Liberal Constitutional Democracies are to survive the challenge posed by authoritarian populism animated by appeals to primordial identities. In this, it reflects the authors’ strengths as serious scholars of both theory and institutions, as well as active contributors to policymaking and constitution-building across the world.

There was a time not so long ago when the world could neatly, if somewhat simplistically, be divided into countries that were Liberal Constitutional Democracies, and those that were not. The former category contained the Western nation-states, which had completed the processes of constitutional and democratic modernity in the post-World War II era. They stood as tangible examples of societies that reaped the benefits of the European Enlightenment’s forms of peace, order, and good government, in unprecedented levels of material prosperity and political liberty for their people. In some cases, such as the countries of the European Union, they had even begun experimenting with advanced institutional forms of post-sovereign and post-modern constitutional organisation. Normative debates about constitutional order beyond the nation-state had become the cutting-edge issues in constitutional theory.

Meanwhile, in Africa, the Middle East, and parts of Asia and Latin America, Liberal Constitutional Democracy, as the signpost of a developed political modernity, remained an elusive aim. Here, human history’s more familiar norms of tyranny, conflict, hierarchy, domination, and poverty seemed to flourish. Given this distressing contrast between the West and the Rest, the challenge for all decent and right-minded people was how to replicate the West’s successes with Liberal Constitutional Democracy in these places and bring succour to the wretched of the earth.

These were the assumptions that governed both international relations and policy as well as much of mainstream social science scholarship since the end of the Cold War, especially in comparative constitutional studies and the practice of transformative constitution-making. The solidity of those assumptions, however, has been jarred suddenly—although not wholly unanticipatedly—by the rise of populist movements in the West, which challenge or reject outright the liberal democratic political settlement that lay at the heart of the successes of Western states and societies. The barbarians of ethnic nationalism and of power-over-authority populism are now at the gates of liberalism’s Western citadels, and in some cases, have overrun them. Ironically, therefore, this internal challenge within Western democracies has made for a narrowing of the comparative gap between North and South in understanding the nature of Liberal Constitutional Democracy. Ginsburg and Huq’s work is primarily concerned with explaining and countering this threat. They offer a sustained set of prescriptions in terms of both institutions and culture that have application in both the West and the rest of the world, provided we are prepared to make the core normative re-commitment to Liberal Constitutional Democracy on the basis of their critique of populist authoritarianism.

The book is less concerned, however, with another type of threat emanating from the other end of the political spectrum. Ever more particularist claims from “identity politics” are on what seems like a relentless ascendance in Western societies. This left-wing challenge destabilises liberal polities in no less a way than does the right-wing challenge of populism. The reification of subjective grievance as a dominant mode of political claim-making constricts the broad and tolerant political centre that is essential to Liberal Constitutional Democracy as a framework for the management of diversity, difference, and disagreement.

And it is not merely the immediate targets of these challenges from Left and Right—whether it is the “patriarchy” or the “cosmopolitan liberal elites”—that need to worry. These dramatic developments in Western democracies expose an age-old conceptual paradox of Enlightenment liberalism itself. Is constitutional democracy of the Western mould based on a procedural liberalism that provides an organising framework for peaceful coexistence, or is it a substantive liberalism that holds itself out as the sole and universal conception of the good life? The left-liberal claims that drive the identity politics of Western societies is a variant of the latter tradition. As such, this discourse has much less to offer Liberal Constitutional Democracy as a model of political organisation on a global scale, because it rejects the accommodation of plural cultural traditions that must underpin a global model of democracy. So far, it is mainly authors identified with the centre-right who have grappled with this challenge, but it really ought to be an issue for those concerned with a defence of Liberal Constitutional Democracy from the political centre as well.

But for the moment it can certainly be said that, alongside a number of other notable contributions in this first wave of scholarly responses to the rise of populism, Ginsburg and Huq have done a great job of showing us why we should be concerned with the threat of populism, why Liberal Constitutional Democracy is worth defending, and what we should do to protect and foster it. Everyone concerned with these issues should read their elegant book.

Cite as: Asanga Welikala, Saving Constitutional Democracy from the Right (and the Left), JOTWELL (November 1, 2019) (reviewing Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (2018)), https://intl.jotwell.com/saving-constitutional-democracy-from-the-right-and-the-left/.

Towards Universal Coverage? Reflections on the Promise and Pitfalls of a Public Option

Democratic voters in America are currently witnessing a contest between three broad visions of the role of the federal government.  One vision is “democratic socialist” in nature and argues for governments to be the exclusive provider of a range of “core goods”—goods central to a life of full human dignity. This is a common theme of democratic socialist proposals on healthcare, for example.  Another vision is market-based: markets should continue to play a leading role and the role of government should be limited to supporting or at times subsidizing access to core goods by low-income earners. A third position is “democratic liberal” in character (or what Jospeh Stiglitz has called “progressive capitalist”). It argues that governments should guarantee universal access to core goods, but not necessarily through exclusive public provision. Instead, it suggests that governments should seek to achieve universal access to core goods in one of two ways: either through an appropriate mix of sticks and carrots for private providers (taxes and subsidies), or a mix of public and private provision.

Enter the idea of the “public option” outlined by Ganesh Sitaraman and Anne Alstott in The Public Option: they argue that the government should provide either a “competitive” or “baseline” public option for citizens wanting to access core goods such as healthcare, housing, education, or childcare. To this list, they also add services such as banking, retirement savings, credit reporting, public defense, and guaranteed employment.

We have written elsewhere about how and why we support a democratic liberal approach over both a more full-blown democratic socialist or free-market approach to the provision of core goods. In short, we think it provides the best mix of dignity, freedom, and equality for all citizens and is the most realistic way of achieving universal access to a decent social minimum—by harnessing the strengths of both the state and markets.

In key respects, Sitaraman and Alstott are also democratic liberal in their approach (they are certainly progressive capitalists): they emphasize the role of both government and private markets in providing access to core goods and services. As they note, they do not “have blind faith in private public administration” or “private firms.” (P. 126.) Instead, they suggest that we must ask “which is the best form of administration given a particular context, history, and the nature of the task at hand.” (P. 126.)

The Public Option offers creative and fresh thinking about how America could in fact realize a democratic liberal vision. For example, the authors propose a public option for retirement savings that involves automatic enrollment, portable benefits, and “simple, sound investment choices with low fees.” (P. 142.) This model involves broad baseline coverage for all Americans and tracks some of the most successful features of the current Australian retirement savings system (though with more emphasis on public funds management). They also suggest a model of childcare that involves ambitious efforts to expand access to high-quality care for American children, and thereby improve childhood outcomes and parental labor force participation: a model of “public infant care (for kids under three), full-day public preschool (integrated with public schools), and public before-and after-care (integrated with public schools).” (P. 194.) And they canvas a range of options for a public option in healthcare. (Pp. 218-22.)

They also provide a cogent defense of the advantages of having the government play a role in providing core goods—advantages such as “economies of scale,” the protection of the vulnerable, the limits of regulation and subsidies in encouraging appropriate private provision, and the benefits of “yardstick competition.” In the classic economic theory of yardstick competition, a regulated firm is reimbursed based on the costs of similar firms. The modern twist on this envisaged in The Public Option is that public provision of goods or services—healthcare is the quintessential example—disciplines private providers by revealing information to consumers about the true cost of provision. In fact, this idea has origins in a 1932 speech by Franklin Delano Roosevelt in Portland, Oregon making the case for public provision of electrical power.

They might also have added that the state has important advantages in ensuring the appropriate quality of provision for certain core goods, as the quality of provision is notoriously hard to contract over for some goods and services. Hence, private providers tend to do worse than the government in providing quality (or decency) in areas such as prisons, immigration detention, or certain welfare services. Indeed, some scholars view incentives for the provision of hard-to-contract-on issues like “quality” as the key to understanding what assets governments should own, and therefore have residual control rights over (Hart, Shleifer and Vishny, 1997).

This form of democratic liberal intervention could not come at a better time; Sitaraman and Alstott are both leading contributors to debates over the role of government in achieving economic justice in America. And America is currently witnessing a debate that is not just about the future direction of the Democratic Party but the direction of the country itself.

While highly sympathetic to the approach proposed by Sitaraman and Alstott in this context, we note one significant challenge to the realization of this vision—especially for a “competitive” public option. If governments create a public option, but then do not subsidize it in any way, the public option will often do little to advance the goal of truly universal access: think of the U.S. Postal Service (USPS) with no government subsidy. It is hard to see how it would ensure deliveries to remote and rural areas at an affordable cost. It could only do so through substantial cross subsidies from urban customers or direct subsidies from the taxpayer. Indeed, this is one reason the U.S. government gives USPS monopoly rights over ordinary mail and spends considerable resources supporting the USPS—as a form of competitive and baseline public option. Last year, USPS lost $3.9 billion on revenue of $70.6 billion.

But there are also dangers to a government adopting a too-generous approach to subsidizing a public option, which is intended to operate in a competitive market—and to preserve genuine competition and individual choice. Too large a government subsidy, in this setting, can effectively undermine what economists call “competitive neutrality.” It can mean that private businesses have an extremely hard time competing with government-owned firms—because they are not doing so on a level playing field.

This is arguably the greatest challenge in designing a public option for something like health-insurance—too small a subsidy, and it is hard to see how the policy will live up to the ideal of “guarantee[ing] access to health care to everyone at a controlled (and affordable) price.” (P. 218.) Healthcare costs are likely to continue to rise, with new medical breakthroughs. And making sure that everyone has access to those breakthroughs is likely to require either a quite significant government subsidy or cross subsidy within private insurance markets (something that is often hard to achieve).

But too great a subsidy and it is hard to see how a public option will “serve as a benchmark and competitor to private options without crowding them out” (P. 218), as former Council of Economic Adviser Chairman Greg Mankiw has noted.

Some current elected officials are not too troubled by this possibility. They would be quite happy, over time, to see a public option (for example, health-care insurance) lead to a model of exclusive public provision—providing that is the result of consumer choice, rather than government mandate. Indeed, this is something that Sitaraman and Alstott themselves seem to think desirable in certain contexts.

That picture may be a little too simplistic, given the problem of competitive neutrality: if the government puts private firms out of business, by undercutting them through large subsidies to a public competitor, they leave individual consumers with limited real choice. This may be justified as part of an effort to guarantee truly universal access to a basic human right (such as health care). But it is not a true competitive public option. It is effectively government providing a universal baseline service or option, and it needs to be understood as such.

The bigger problem, however, is one of cost or affordability: if the government makes the competitive public option too attractive—through subsidies—it is likely to end up having to foot the bill for subsidies for millions of Americans, including many high-income earners. And that is when a public option—initially affordable—can end up becoming extremely expensive for the government, and therefore ultimately the taxpayer. In this context, the most effective democratic liberal policy is one that seeks to provide public subsidies on a more limited or an income-targeted basis.

Sitaraman and Alstott are alive to these kinds of complexities when talking about the challenges facing governments in deciding how much to subsidize private firms or how to impose price-based regulations on private providers, in the provision of core goods. (Pp. 55-65). Indeed, their analysis of the challenges is well worth reading as a valuable contribution in its own right to the current economic debate.

But when it comes to the design of their own preferred model—of public provision as a baseline or competitive option—they largely gloss over these same complexities. A big part of the design challenge in framing a public option is the level and cost at which the government should provide a service, and these are not questions that the book aims to answer in any detail. In part, this is inevitable, given the book’s intended audience and impact. And we support that focus. But it is also a potential weakness in the book and its prescriptions for the Democratic party and the broader American debate. Sitaraman and Alstott are surely right that U.S. government should play a larger role in promoting universal access to a generous social minimum or various core goods. The big question, however, is how it should do so—and whether taxes, subsidies, or direct public provision provide the best instrument. And on that, The Public Option substantially advances the debate but does not conclude it.

Cite as: Rosalind Dixon & Richard Holden, Towards Universal Coverage? Reflections on the Promise and Pitfalls of a Public Option, JOTWELL (October 17, 2019) (reviewing Ganes Sitaraman & Anne L. Alstott, The Public Option: How to Expand Freedom, Increase Opportunity, and Promote Equality (2019)), https://intl.jotwell.com/towards-universal-coverage-reflections-on-the-promise-and-pitfalls-of-a-public-option/.

Clarifying Populism

David Fontana, Unbundling Populism, 65 UCLA L. Rev. 1482 (2018).

Professor David Fontana’s Unbundling Populism is a valuable addition to a burgeoning body of comparative constitutional law scholarship on populism. Some scholars have provided helpful typologies of populism. Mark Tushnet, for instance, distinguishes between different forms of populism and identifies the constitutional implications of right- and left-wing populist policies. Others have adopted working definitions of populism and specified the ways in which populism (so defined) threatens key elements of liberal constitutionalism. Nicola Lacey, for example, claims that there is a general consensus on the conceptual elements of populism and identifies a variety of ways in which populists have threatened the rule of law, ranging from agenda-setting that threatens core rule of law institutions to the flouting of constitutional conventions. Still others have written about populism, while resisting the temptation to seek a workable definition. For instance, Kim Lane Scheppele turns away from trying “to define and delegitimate” populism and asks instead why so many liberal constitutionalists are “so obsessed with populism.” In the course of answering this question, she identifies threats that populists pose to liberal constitutionalism, often by using the rhetoric of liberalism and democracy.

In his remarkable article, Fontana pulls together several of the above threads in the comparative constitutional law literature on populism. He provides a working definition of populism, offers a novel typology, and warns that if we are imprecise in how we talk about populism, we may delegitimate concerns that are valid in a liberal democracy and we may legitimate leaders with authoritarian tendencies.

Drawing on a variety of sources, Fontana defines populism in terms of style and substance. As a style, populism “values political arguments that are clear, comprehensible and often emotional.” (P. 1488.)  According to Fontana, the populist political figure rejects the increasingly technical language of political institutions and instead speaks in a way that signals her authenticity and her connection to ordinary citizens. (P. 1489.) In so doing, she distances herself from actors within political institutions who claim to hold “specialized expertise” that gives them “jurisdiction” over those institutions. (P. 1488.) Fontana argues that populism is not, however, merely a style, for it advances a policy agenda the goal of which is “to rectify injustices that empowered elites created for the rest of the people.” (P. 1489.) Fontana finds examples of this agenda in sources as diverse as Federalist Nos. 10 and 52, Thomas Piketty’s Capital in the Twenty-First Century, and legal scholarship which has found that “experts—in law and otherwise—can be even more biased in application of their skill than lay people.” (P. 1491.)

Fontana contrasts this version of populism, which he labels “unbundled populism” with another version, which links the anti-establishment orientation of unbundled populism to “conceptually distinct authoritarian and xenophobic world views.” (P. 1494.) Fontana labels this version “bundled populism.” The authoritarian and anti-pluralist dimensions of bundled populism emerge when its proponents define “the people” as a homogenous and virtuous collective who have been subject to the predations of a malign elite, and in whose name a single political faction can rule. According to Fontana, the bundled populist views those who fall outside his definition of the “morally legitimate” people as threats to be warded off. (P. 1495.) For right wing populists, the threat comes in the form of immigrants, and for left-wing European populists, it takes the guise of elites who have “coopted the social democratic state.” (P. 1495.)

The reader might reasonably ask what is at stake in distinguishing these two forms of populism. Fontana provides us with two sets of answers, one conceptual and one political. If we fail to tend to this distinction, Fontana tells us, we might use the term “populism” as a kind of shorthand for bundled populism. As a result, we would give the impression that the populist dimension of bundled populism, rather than its authoritarian or xenophobic dimensions, is the cause of specific instances of bundled populism or is their most significant aspect. (P. 1497.) Furthermore, argues Fontana, by availing ourselves of this shorthand, we may mistakenly presume a unique and particularly significant causal relationship between anti-establishment views and intolerance. Fontana notes, however, that it is polarization that “generates powerful ingroup and outgroup mechanisms” and that polarization can arise along many kinds of ideological cleavages. (P. 1497.) Fontana cites to empirical evidence showing that “[s]upermajorities of Americans of both parties would be disinclined to hire someone from the opposing political party.” (P. 1498.) It is not clear, then, that the populist is especially susceptible to defining opponents as “distant and inferior” (P. 1497), nor is it clear that the populist form of polarization is more problematic than others that have arisen in recent history. (P. 1498.)

Fontana argues that, in addition to these conceptual problems, there are political consequences that flow from failing to distinguish between bundled and unbundled forms of populism. In the current media landscape, if populism is generally understood to be synonymous with its bundled version, those who hold only the anti-establishment views of unbundled populism will be called to answer for the authoritarian, xenophobic, and attention-grabbing antics of bundled populism’s adherents. (P. 1499-1500.) Moreover, when no distinction is made between bundled and unbundled populism, the serious concerns of the former are summarily dismissed because they are associated with the deeply unserious views of the latter. As a result, empirically supported arguments about the failure of elites to attend to concerns of the broader public are rejected, Fontana claims, because they are conflated with spurious claims about the purity of the people. (P. 1501.) Finally, Fontana argues that if one fails to distinguish bundled from unbundled populism, one may confer unearned legitimacy on the former. By labelling as a populist tout court an authoritarian leader who claims to act for ordinary people against self-interested elites, one implicitly endorses that claim, whether or not it is borne out by his actions. (P. 1502-03.) And by describing such a leader as a “populist” rather than an “authoritarian,” or even an “authoritarian populist,” one risks downplaying the morally objectionable features of his bundled populism. (P. 1503.)

Populism is a complex and contested concept. Fontana’s article will not, of course, resolve all the controversies surrounding this concept but it does encourage us to think about what is at stake in defining populism. And perhaps most especially for those of us who work in the area of comparative constitutional law, Fontana’s insights will spur ongoing discussion, as the challenges to the assumptions and practices of liberal constitutionalism and its institutions spread around the globe.

Cite as: Hoi Kong, Clarifying Populism, JOTWELL (September 10, 2019) (reviewing David Fontana, Unbundling Populism, 65 UCLA L. Rev. 1482 (2018)), https://intl.jotwell.com/clarifying-populism/.

Layering Property, Disseminating Knowledge

Ruth L. Okediji, A Tiered Approach to Traditional Knowledge, 58 Washburn L. J. 271 (2019).

Presented as the Foulsten Siefken Lecture at Washburn Law School, Professor Okediji’s article, A Tiered Approach to Traditional Knowledge, has implications beyond its focus on traditional knowledge. That’s why it is an article I like lots, as we say in these pages. Its publication in the Washburn Law Journal was accompanied by several thoughtful commentaries, which along with the principal article form a valuable symposium. I like the commentaries a lot too. But I will focus on the main course rather than the tempting side dishes.

Traditional knowledge consists of know-how passed on within local communities carrying forth understandings about healing, cooking, and other fruitful uses of the natural environment. Traditional knowledge is different from traditional cultural heritage, which consists of folklore and artifacts that convey communal interpretations about the world. A common issue raised by both traditional knowledge and traditional cultural heritage is whether their content should in some sense be owned either for the purposes of commercial exploitation or for preservation. Since the legal and political issues are different for the two categories, authors tend to narrow their attention to one or the other. Here, Professor Okediji focuses on traditional knowledge.

Arguments over protection of traditional knowledge are cast in property terms. Consequently, acceptance or rejection of legal protection often rests upon assessments of the desirability of property, especially intellectual property. Professor Okediji presents these well-known arguments in a systematic and original way. She also offers a fresh previously ignored solution based on an analogy to trade secret law. Carefully and thoughtfully, Professor Okediji borrows from fundamentals and critiques of intellectual property to proffer a solution to the problem of how to protect traditional knowledge.

The Intergovernmental Council (IGC) of the World Intellectual Property Organization (WIPO) has been debating protection for traditional knowledge for nearly a decade. The discussions among the member states rehearse many of the well-worn debates played out in decades of scholarship. Best, some advocates against intellectual property maintain, that traditional knowledge remain in the public domain. Intellectual property is not suitable for traditional knowledge because the former privileges individual, rather than communal, creation for the benefit of progress and the modern as opposed to the needs of preservation and tradition. Furthermore, intellectual property laws have served to exploit traditional knowledge, turning know-how gleaned from nature into industrial commodities reassembled in factories. Therefore, to treat traditional knowledge as intellectual property would insult the efforts of activists who have spoken out against pharmaceutical companies that have pursued patents on turmeric, on neem, on the Gumbi Gumbi plant of Australia, and on varieties of Hawaiian taro.

Other members of the IGC, often representing the interest of developing countries, urge protection for traditional knowledge, even if not with the full regalia of intellectual property. Communities which foster and sustain traditional knowledge should be able to benefit and govern its commercial exploitation. Such communities should also make ultimate decisions of whether the knowledge should be exploited at all. In order to protect these community interests, some type of legal rights must be attributed to traditional knowledge. Among these advocates for property rights, the debate is over the details. Who will be the owner? What will be the score and duration of the rights? Proponents move beyond conceiving of property rights as an all or nothing. Instead, they turn the debate into a quest for a balance middle ground.

In many ways, however, the Traditional Knowledge agenda, even as it plays out in WIPO, is consistent with that of the World Trade Organization (WTO) and flows from the philosophy of the Agreement on Trade-Related aspects of International Property Rights (TRIPS). The goal of the TRIPS Agreement is to require member states to reform their intellectual property regimes to meet substantive minimal standards set forth in the treaty. Requirements on subject matter, scope and duration, and limitations and exceptions serve to harmonize intellectual property law and assure predictability as member states trade with and invest in other states. Recognizing intellectual property protection in Traditional Knowledge is a logical extension of these principles. As the World Bank stated in the title to its study on Traditional Knowledge, intellectual property can serve to unlock the economic value of Poor People’s Knowledge. Presumably, this economic value is realized through international trade and the economic transactions across nations envisioned within the WTO and TRIPS. When understood this way, the Traditional Knowledge agenda is an extension of, not a reaction to, our new world trade order.

The contradiction, however, is that Traditional Knowledge is often highly local and specialized. Intellectual property covers a range of divergent subject matters, including software, pharmaceuticals, processes for producing chemicals, video games, films and television programs, and educational materials, and intellectual property laws are written in broad enough terms, such as creation and invention, to encompass a wide range of activities and industries. Nevertheless, Traditional Knowledge does not find a comfortable fit within the broad category of intellectual property. Traditional know-how is often more mental than technological, engaging with culturally defined ways of thinking, rather than complex machines or technologies. While the products of intellectual property are designed to promote change, the fruits of traditional know-how are meant to ensure a stable set of knowledge rather than to invite innovation and change. However, subjects of Traditional Knowledge, such as the benefits of plants for medicinal or nutritional purposes, are often innovative for those in the developed world who may not be familiar with the exotic fauna or their uses. Fitting Traditional Knowledge within intellectual property requires a balance between the values of stability and devotion to innovation (sometimes for its own sake).

Not only is the idea of Traditional Knowledge somewhat disconnected from intellectual property, it may also be inherently incoherent. First of all, Traditional Knowledge subsumes the knowledge of indigenous groups as well as groups that have a more recent history. This problem in definition raises issues [with identifying?] the relevant beneficiaries. Furthermore, Traditional Knowledge covers a wide range of fields from medicine to music. In its deliberations, WIPO has separated Traditional Knowledge from Traditional Cultural Expressions (TCE), with the latter being the subject of a separate agreement. But even with this bifurcation, Traditional Knowledge encompasses specialized knowledge that is often geographically local and culturally specific. This knowledge as a subject of global trade is very different from the freely mobile capital and technology of intellectual property law in the contemporary trade system.

These notable differences explain the need for a separate agreement on Traditional Knowledge and the set of large scale and specific issues that are the subject of negotiation. They help to identify the fault lines in the negotiations and the sources of continuing debate and tensions.

Talks continue within the IGC, and in my opinion they appear to be stalled. Perhaps Professor Okediji’s proposal can promote progress on a new international treaty. Her proposal would divide traditional knowledge into four categories with legal protection tailored to the four tiers. Sacred traditional knowledge is fully protected from commercial exploitation. Secret traditional knowledge, know-how that has commercial value, would be treated under principles of trade secret law. Closely held traditional knowledge is created and maintained through the collective efforts of the community but is used in the open. Finally, widely used traditional knowledge is knowledge that has disseminated beyond the group. The first three types of traditional knowledge would be legally protected through a system of proprietary rights that would include the right to compensation and right of attribution. Widely used traditional knowledge, however, would be subject to the right of attribution, or perhaps relegated to the public domain. Professor Okediji advocates for this tiered approach as both politically acceptable and a balance of the community and commercial interests arising from traditional knowledge.

This tiered proposal should provide guidance for the IGC to move towards a conclusion. Reformulating traditional knowledge based on degrees of sacredness, secrecy, and openness restructures the economic rights of traditional knowledge communities. But much of the debate is a reflection of uncertain political rights both within the communities and within the nation-state. The difficult question is how legal rights can address these political issues through a multi-lateral trade agreement. Treaties protecting human rights and cultural rights should play some role in defining rights in traditional knowledge. The problem is that framing traditional knowledge within intellectual property frameworks ignores political rights. Perhaps the best one can do is for the IGC to leave the matter of political rights to national legislatures and courts. Nonetheless, proposals like tiered rights need to keep in mind (or account for) political, cultural, and economic implications.

Engaging, provocative, and thoughtful, Professor Okediji’s article in one that many will like lots, and its ideas should be taken seriously in understanding the traditional knowledge debate and the possibilities of intellectual property law.

Cite as: Shubha Ghosh, Layering Property, Disseminating Knowledge, JOTWELL (July 19, 2019) (reviewing Ruth L. Okediji, A Tiered Approach to Traditional Knowledge, 58 Washburn L. J. 271 (2019)), https://intl.jotwell.com/layering-property-disseminating-knowledge/.

Cow Protection in India is Not About Cows, Not About Protection

Scholars of comparative constitutional law and animal law alike have recently recognized what has been called comparative constitutional animal protection. One country with a strong constitutional commitment is India, as exemplified by Art. 51A (“It shall be the duty of every citizen of India—(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures …”) and Art. 48 (“The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”).

And yet, paradoxically, this is not all good news for the animals. And not all good news for India’s human citizens, either. The politics of cow protection in India, and in particular the prohibition on the slaughter of cows that exists in most of the Indian states, are complex, and anyone seeking to understand the place of cows in Indian society will not find any easy answers. And yet for years, I have been looking, unsuccessfully, for a publication that examines the cow slaughter ban from all angles and brings out the many complexities that I knew must be lurking under the surface of the constitutional language. That is, looking unsuccessfully until now. Yamini Narayanan’s article, Cow Protection as ‘Casteised Speciesism’: Sacralisation, Commercialisation and Politicisation, does everything that I had hoped I might find and much more—it is brilliant, beautifully written, and essential reading for anyone interested in animal law, animal rights, the regulation of milk, India’s caste system, cow protection, the Hindu religion, and speciesism generally—well as comparative analyses of all of these areas.

Narayanan introduces an important concept in the title: “casteised speciesism” and argues that cow protection reinforces these “two compatible and comparable oppressions.” Dalit and Muslim groups, whose livelihoods depend on beef and tanning industries, regard prohibitions on cow slaughter to be a direct attack on themselves and their communities. All milk-producing and draught cattle should be included, constitutionally, but Narayanan shows that “cow protectionism operates in distinct ways for the three categories of bovines in India: the native Indian-bred bovines, the crossbred/Jersey bovines (bred prolifically as a result of India’s widespread artificial insemination programme to increase milk production) and the buffalo.” The treatment of these three types of bovines maps onto and reinforces caste categories. Buffalos are black-skinned and are considered low caste. The crossbred/Jersey cows are considered half- or mixed-caste. The native Indian breeds are considered “pure,” corresponding to the highest castes for humans.

Further, the ban is only on the slaughter of the animals, nothing more than that. This seems to suggest that the only harm to these animals is the slaughter itself, and not the fact that they are used as dairy animals with all of the harm that such a function entails. For cows to continue to produce milk, they must be inseminated repeatedly, and male calves and bulls are immediately culled. When female cows can no longer produce milk, they too are culled. In actuality, they are killed, in underground slaughterhouses throughout the country.

Gaushalas, or cow sanctuaries, do not accept all bovines, instead adopting the same caste system. Narayanan does field work with gaushalas, and notes that at the gaushala owned by the Hindu nationalist party, they only accept native breeds of “white bovines.”

Narayan ends with a call for a reframing of Indian animal rights advocacy, calling upon it to reflect upon the “sectarianism, casteism and speciesism inherent in cow protection.” (P. 349.) She concludes with the powerful warning: “No animal protectionism can endure without an ongoing interrogation of the political economies of current animal and energy-intensive food production systems that are responsible for violence against humans, animals and the environment.” (P. 351.)

Cite as: Kristen Stilt, Cow Protection in India is Not About Cows, Not About Protection, JOTWELL (June 20, 2019) (reviewing Yamini Narayanan, Cow Protection as ‘Casteised Speciesism’: Sacralisation, Commercialisation and Politicisation, 41 S. Asia: J. of S. Asian Stud. 331 (2018)), https://intl.jotwell.com/cow-protection-in-india-is-not-about-cows-not-about-protection/.

The Nature of Judicial Power

Daniel M. Brinks & Abby Blass, The DNA of Constitutional Justice in Latin America (2018).

Scholarship on the exercise of judicial power often focuses on its nurture: how judges operate to protect their authority in a complex system of personal incentives, institutional constraints, and political uncertainty. In their recent book, The DNA of Constitutional Justice in Latin America (2018), Dan Brinks and Abby Blass instead focus on the nature of judicial power, producing a magisterial analysis of judicial design. They argue that a court’s formal institutional design can indicate the kind of political influence it was intended to exercise. And in so doing, they present a beautifully integrated theory complete with robust quantitative and qualitative empirical support.

The book aims to provide a “unifying political account of the origins of the different models of constitutional justice that have emerged in Latin America since the 1970s” (P. 2), and its conceptual contributions are limited to that set of countries. Nevertheless, Brinks and Blass develop a theory that has universal appeal, and scholars of global or regional constitutionalism in other geographic areas will benefit from reading and drawing on this work.

The theoretical heft of the book comes in the first three chapters, in which the authors outline the state of the literature on constitutional governance and judicial review, develop their own definition of judicial power, and elaborate their theory of the politics of judicial design. These chapters are required reading for senior scholars and neophytes alike, and will give social scientists and constitutional lawyers much to debate.

Building on foundational work by Ginsburg, Hirschl, and others, Brinks and Blass complicate the focus on the role of the “Ruling Coalition” in constitutional design. They argue for keeping distinct the various sets of actors involved in constitution-making, in regular politics, and in implementing constitutional justice (the sphere of activity subject to constitutional standards and judicial review). They thus identify three important groupings: the “Originating Coalition,” or the “set of actors whose agreement is required in order to produce a binding initial pact” (P. 50); the “Ruling Coalition,” or the “set of actors who are empowered to make binding decisions in ordinary politics” (P. 1); and the “Constitutional Governance Coalition,” or the “set of actors whose consent is required to exercise control of over the system of constitution justice”(P. 8).

This disaggregation has immediate benefit, as Brinks and Blass are able to categorize and evaluate the existing theories of judicial review based on how those theories describe or assume the relationship of the Originating Coalition to the Ruling Coalition. In critiquing the existing theories, Brinks and Blass argue that they all “ask too much of courts” (P. 53) and fail to properly incorporate the politics of judicial behavior.

To fill this gap, the authors introduce their Constitutional Governance Coalition (CGC) as the mechanism that mediates between the court and politics. But before evaluating its role, Brinks and Blass first develop their understanding of judicial power, connecting it to various formal design elements. Setting aside the current scholarly focus on “judicial independence” as misguided, Brinks and Blass instead define judicial power along two dimensions: authority and autonomy.

A court’s authority turns on the scope of the sphere of constitutional justice: What subjects are constitutionalized? How capacious is a court’s jurisdiction? How accessible is it? What are its decision-making rules? Are its holdings universally applicable? Autonomy, by contrast, is constructed by the nature and identity of a court’s ongoing control coalition, which may operate both ex ante (through appointments, etc.) and ex post (through removals, jurisdiction stripping, etc.) controls. A court with strong autonomy would not be insulated from politics, but would be responsive to “a plural and inclusive control coalition that cannot easily be captured by a single outside interest or faction” (P. 24). And certain institutional arrangements will increase ex ante or ex post autonomy: Imagine many actors involved in an appointments process that leads to consensual choices, or a multiplicity of veto players making it more difficult to sanction or reward judges after issuing decisions. (Other aspects can include length of judicial tenure, court-packing, jurisdiction-stripping, monetary pressures, etc.)

Authority and autonomy interact, producing different models of constitutional justice. The authors provide a two-by-two matrix that includes in one corner a narrow authority/low autonomy court (“Sidelined”), and in the other, a broad authority/high autonomy court (“Major Policy Player”). Courts with broad authority/low autonomy are most likely to be “Regime Allies,” and those with narrow authority/high autonomy will be “Procedural Arbiters” limited to protecting narrow areas, usually of economic rights.

The CGC functions to influence as well as to protect the court and is made up of a court’s control coalition as well its “support coalition” (those with “access to the court for protection of their substantive interests” (P. 57)). The CGC will necessarily reflect the politics of the Originating Coalition (OC) and its relationship to the Ruling Coalition (RC). In some ways, the CGC acts as the “successors in interest” of the OC, and Brinks and Blass expect that this intent “will be reflected in the DNA of constitutional justice” (P. 60)—or, in other words, in formal elements of judicial design.

By recognizing that the system of constitutional justice is “accountable to a coalition that is conceptually (if not always empirically) distinct from the Ruling Coalition” (P. 9), Brinks and Blass open up a wide variety of inquiries about how, when, and why an OC might act to give the CGC control. Will the ideology of the OC (Left vs. Right) impact the scope of constitutional justice? How will that scope be affected by the role of the RC within the OC? Will the OC provide more ex ante or ex post tools to the CGC? Will levels of ex ante vs. ex post autonomy respond to different political dynamics? How might a history of violence affect constitutional justice and a court’s authority and autonomy?

In response to this wide range of questions, Brinks and Blass elaborate hypotheses based on principles derived from their theory, and the rest of the book tests their claims through both quantitative and qualitative analysis. Integrating quantitative and qualitative methodology in this way is both productive and persuasive; the book serves as an exemplar for the field of comparative constitutional law and policy.

For scholars of Latin America or those with interest in the region, or for empiricists who might like to build on (or challenge) the quantitative measures, these final chapters are rich and compelling. An appendix includes the authors’ work developing quantitative measures of authority and autonomy, and in Chapter 4, using those and other newly developed measures, they run regressions to assess whether their theories of design and constitutional justice have explanatory value in the region. Their results confirm the relevance of their overarching constitutional governance framework (and reaffirm gaps in other theories of judicial power), by indicating that the OC aims to design “a system for ongoing dynamic constitutional governance” rather than to protect “an immutable pact” (P. 88). Chapters 5, 6, and 7, in turn, provide qualitative evidence of the “logic of constitutional governance at work” through an in-depth examination of the Originating Coalitions and constitutional debates in Guatemala, Argentina, and Bolivia.

The project is a tour de force and will serve as a launch pad for more scholarship on judicial power and judicial design. For example, an often-stated element of judicial power is “effectiveness,” or a measure of the expected compliance with a court’s decisions. Brinks and Blass omit this element in their definition, perhaps because effectiveness can be theorized as part of institutional function rather than formal design. (David Landau has argued, for example, that judges themselves can and do shape and create support structures to enhance effectiveness.) But effectiveness is sometimes addressed through formal design; some constitutions explicitly provide processes for enforcing judicial orders. And effectiveness might also be tied to formal measures of authority. A broader scope of authority that generates a broader support coalition able to impose costs on the Ruling Coalition might lead to a higher measure of compliance/effectiveness. Engaging with judicial effectiveness would require more detailed attention to the Constitutional Governance Coalition than given by the authors. Who are the actors that make up the coalitions of control and of support, and how do those two groups function within the Constitutional Governance Coalition?

In a book of this ambition, there are bound to be unanswered questions. Brinks and Blass have consciously limited their project to institutional design, not institutional functioning. Therefore, they do not spend much time on the complications presented by nurture and do not assess whether courts actually turn out the way their designers intended. And indeed, that is another project. Some will be left wanting more, but there is plenty—indeed, lots!—to like in the great contributions made by the authors to our understanding of constitutional design and judicial power.

Cite as: Erin F. Delaney, The Nature of Judicial Power, JOTWELL (May 28, 2019) (reviewing Daniel M. Brinks & Abby Blass, The DNA of Constitutional Justice in Latin America (2018)), https://intl.jotwell.com/the-nature-of-judicial-power/.