Mar 31, 2026 Sam F. Halabi
For many of us, Derrick Bell’s Race, Racism, and American Law was a fundamental, devastating revelation about the role of law in constructing, reinforcing, and emboldening social institutions and structures that perpetuate and strengthen racism and de facto apartheid. Bell’s sphere was primarily the domestic United States—although of course it was not possible to completely separate the local from the global in 1973 and certainly is not today. Scholars influenced by Bell applied his lessons to other areas of legal research, including, but not limited to, international law. At its origin and continuing today, international law was anchored in racialized paradigms placing at their apex the “civilized” i.e. white and colonial sovereign powers, partially civilized countries like “Siam” and the Ottoman Empire, and “savage” or “barbarian” states comprised of what Frantz Fanon was later to famously describe as “the wretched of the earth.”
International law represents, therefore, an even more focused study of Bell’s precepts, and I welcome this new volume dedicated to this essential nexus of law and justice, Race, Racism, and International Law edited by Devon Carbado, Kimberle Williams Crenshaw, Justin Desautels-Stein, and Chantal Thomas. Featuring chapters from E. Tendayi Achiume and Aslı Bâli, Aziza Ahmed, Adelle Blackett, Christopher Gevers, Wadie Said, and Matiangai Sirleaf, in addition to the editors, the volume provides scholars of international law and racial justice one of the most important resources to date on how the history, agents, processes, and discourse of international law not only entrenched racial oppression as part of imperial global extraction and exploitation, but now sustain and feed this oppression within international legal rules and institutions. As wielders of these forces, the International Criminal Court is just as culpable as the World Trade Organization.
This book is one I like a lot, and I hope others active in the study and shaping of international law do as well. The book is divided into three sections covering “histories and structures”; “peoples, places, perimeters, and powers”; and “critical race theory and international law.” The editors and contributors cover themes, institutions, and essential concepts that advocate a fundamental reorientation of theory and praxis of international law its widest range of subjects—commerce, crime, health, the major neo-liberal economic institutions—toward the perspective and welfare of those it has historically oppressed.
In addition to providing perhaps the most comprehensive volume on the juxtaposition of international law and racial justice (many scholars including myself analyze the socially beneficial and pernicious effects of specific international legal regimes and organizations, but far fewer characterize them in such a specific way), Carbado, Crenshaw, DeSautels-Stein, Thomas and their contributors have offered a thoughtful critique of how essential concepts in international law—for example sovereignty, universal norms, commerce—thread racial inequality throughout the global order. Indeed, Wadie Said brings this point home in a particularly compelling way in his chapter, Race and Politics in International Criminal Law: Case Studies from the Arab World, on how international criminal law itself has absorbed and regurgitated specialized forms of racial oppression against unpopular Arab regimes largely to the detriment of their innocent populations.
Two examples are illustrative. In Matiangai SIrleaf’s chapter, White Health and International Law, she carefully traces how global health law—itself a vestige of so-called “tropical medicine” developed to address the concerns of American and European colonial administrators and their militaries—entrenches “racialized” disease classification and response, not broadly because those diseases maintain a fundamental biological connection to race (of course some diseases and conditions do), but rather signal race as part of the “political, legal, and social privileging and salience given to ailments thought to touch and concern White people.” (P. 203.) Tendayi Achiume and Asli Bali provide a similarly insightful lesson in Critical Race Theory Meets Third World Approaches to International Law, about how scholars in the tradition of “third world approaches to international law” (TWAIL) and critical race theory share perspectives that 1) the formation and force of international law cannot be separated from its imperial and colonial origins and 2) that empire and colonialism are fundamentally racist endeavors that place the capital-accumulating European class at the apex of a contorted and oppressive system of exploitation and territorial control. These scholars and traditions still have much to learn from one another, and Achiume and Bali set an extraordinary stage for doing so, some of which is then provided in Part III.
Carbado, Crenshaw, DeSautels-Stein, and Thomas have undertaken an extraordinarily valuable exercise in using this volume not only to map the pressure points where racial justice principles may better inform the international legal order, but also to expose the ways in which conventional justifications and practices are vulnerable to their piercing and incisive criticisms. As international law struggles as part of the battle ground between violent, racist, fascist territorial expansion on the one hand and those opposed to it on the other, Carbado, Crenshaw, DeSautels-Stein, and Thomas’s volume, and along with it their contributors, will be a go-to resource for those assessing how to move forward both inside and outside the academy.
Cite as: Sam F. Halabi,
Race, Racism, and International Law—Taking Derrick Bell’s Insights to the Next Level, JOTWELL
(March 31, 2026) (reviewing
Race, Racism, and International Law (Devon Carbado, Kimberlé Williams Crenshaw, Justin Desautels-Stein, & Chantal Thomas eds., 2025)),
https://intl.jotwell.com/race-racism-and-international-law-taking-derrick-bells-insights-to-the-next-level/.
Mar 2, 2026 Mathilde Cohen
Julie C. Suk, The Shadow Court: Rescuing Democracy from the Supreme Court (2026).
Julie Suk’s forthcoming The Shadow Court: Rescuing Democracy from the Supreme Court is an invigorating intervention in the long-standing question of how to align constitutional lawmaking in the United States with democratic ideals. Suk’s book moves beyond familiar critiques of the Supreme Court’s judicial supremacy to propose a bold, institutionally imaginative solution: the Shadow Court. What makes this proposal particularly compelling is its comparative lens, drawing on constitutional designs across the world to offer concrete inspiration for reform. In an era when the Supreme Court increasingly dominates the constitutional landscape, Suk invites readers to imagine what constitutional law might look like if citizens, legislators, and other institutions could exercise more democratic influence over its creation.
At the heart of Suk’s project is the conviction that “[i]n a healthy and legitimate constitutional democracy, ‘We the People’ should have supremacy and control over constitutional lawmaking.” The book diagnoses a democratic crisis rooted in the Supreme Court’s concentration of power, much of it facilitated by the Court itself. Suk observes that the Court’s eighteenth-century design, as an Article III judiciary primarily intended for dispute resolution, is ill-suited to serve as the principal constitutional-lawmaker for a twenty-first-century, demographically complex nation. Against this backdrop, The Shadow Court pivots toward institutional innovation rather than incremental reform: it sketches out a new body capable of exercising real influence without formal coercive power, borrowing lessons from shadow cabinets in parliamentary democracies and constitutional courts abroad.
Suk’s comparative perspective is one of the book’s most original contributions. She draws on examples from Austria, Germany, France, Italy, Spain, Colombia, and South Korea to show how constitutional adjudication can foster democratic legitimacy even when the courts lack traditional binding power. As she emphasizes, “Americans can also reach back to some historic peaks of Congress’s role as a constitutional lawmaker” and look beyond national borders to see how other democracies have updated institutions in ways that strengthen citizen influence over lawmaking. This approach reverses the familiar story in which the United States is treated as the model to emulate—or criticize—from afar. Instead, Suk situates it within a global conversation about constitutional design, offering an antidote to the insularity that has at times characterized U.S. constitutional thought.
One of the anchors of Suk’s proposal is the adaptation of the shadow cabinet principle from parliamentary systems. In Britain and other Westminster-style democracies, the political opposition forms a structured and disciplined body that mirrors the government, providing alternative policies and scrutinizing executive power. Suk emphasizes that “[e]ven though they have no formal legal or political power, the practice of shadowing those who do exercise power creates the productive pressure of a constant concrete alternative and a government in waiting.” Her insight is that the United States can borrow this logic to create a Shadow Court that operates as a loyal opposition to the Supreme Court, offering reasoned alternatives and a democratic check on the nation’s primary constitutional “negative” lawmaker, as Hans Kelsen would have said.
The book’s design for the Shadow Court is admirably flexible. Suk suggests a core of nine Shadow Justices who hear the same constitutional controversies as the Supreme Court and issue thoroughly reasoned opinions: “Imagine a body of nine Shadow Justices who hear arguments on the same constitutional controversies and publish judicial opinions that are thoroughly reasoned, without actual legal power to shape the outcome.” By removing the constraint of formal power, Suk envisions an institution capable of cultivating persuasive constitutional reasoning while engaging directly with Congress, the people, and other political actors. In this way, the Shadow Court functions as a living form for concurrence or dissent, where counterarguments are developed by real thinkers for an audience that includes potential decision-makers.
Suk also demonstrates the breadth of possible institutional models, showing how other countries’ experiments with abstract review, advisory opinions, and nonbinding declarations provide lessons for the United States. The book’s discussion ranges from state supreme courts issuing advisory opinions to the United Kingdom’s Human Rights Act courts, illustrating that the accumulation of influence need not rely on formal binding authority. Suk argues that such mechanisms can cultivate “power through persuasive legal analysis and dialogue with the established, more powerful branches of government,” offering a powerful corrective to the Supreme Court’s “Shadow Docket.”
One of the book’s most appealing features is its refusal to settle prematurely on the minutiae of institutional design. Suk leaves open questions about the exact composition of the Shadow Court, term limits, and the method of appointment, inviting further reflection and debate. She also encourages comparative study of constitutional courts in multiple other countries, highlighting that Americans can learn from a wide variety of institutional experiments. In sum, The Shadow Court is a rare book that combines theoretical rigor, historical sensitivity, and practical imagination. Suk demonstrates that comparative law is not merely an academic exercise but a source of actionable inspiration for democratic reform. Her Shadow Court offers a framework in which dissenting voices and citizen engagement can coexist with existing institutions, creating a more robust and accountable version of constitutionalism. This is a book that will stimulate conversation among scholars, practitioners, and anyone concerned with the survival of American constitutional democracy.
Feb 4, 2026 Martin Gelter
Royhan Akbar, Nathanial Mangunsong, & Dan W. Puchniak,
The Abolition of Independent Directors in Indonesia: Rationally Autochthonous or Foolishly Idiosyncratic, __
Am. J. of Compar. L. __ (forthcoming, 2026), available at
SSRN.
Over the past 30 years, comparative corporate law scholarship has grown into a worldwide industry with a substantial volume of publications. For an English-speaking scholar, it has become easy to follow debates in (mainly Western) Europe, Japan, China, India, and Brazil, just to name a few hotspots of the field. Indonesia is often overlooked in the literature, which is surprising, given that it is the fourth largest country in the world by population and its status as a Member of the G20 and an Upper-Middle-Income economy (in fact, the seventh largest economy by GDP/PPP).
Royhan Akbar, Nathanial Mangunsong, and Dan W. Puchniak’s forthcoming article, The Abolition of Independent Directors in Indonesia: Rationally Autochthonous or Foolishly Idiosyncratic, is one of very few filling this gap. What at first glance seems like a peculiar development—the abolition of the requirement for publicly traded companies to have independent directors—reveals many parallels to other countries upon closer investigation, which allows the authors to make important points that reveal structural features of comparative corporate governance beyond the country.
As the article describes, Indonesian company law has its roots in the Dutch colonial period. The 1994 codification shows some residual influence of this legal origin, as it reaffirmed what some might call a two-tier board structure comprising a board of directors and a separate board of commissioners. Following the Asian financial crisis of the late 1990s, the IMF pushed Indonesia toward corporate governance reforms, which included independent directors. These were enshrined, partly as recommendations and partly as requirements, in the Indonesian Corporate Governance Code and the Jakarta Stock Exchange (JSE)’s listing rules in the early 2000s. After the repayment of the IMF loans, the Corporate Governance Code began to omit the recommendation in 2006, while the JSE’s requirement of a single independent director was abolished in 2018.
The development illustrates several historical patterns in comparative corporate governance. In the early 1990s, Indonesia’s “legal origins” seemed to be its most important driving force. In the late 1990s, under pressure from the IMF, the country’s evolution illustrates the period of convergence in corporate governance, with independent directors being a significant example of the adoption of classic elements of “good” corporate governance from a US and UK perspective. Convergence is soon followed by divergence in the form of reversion to its old patterns.
Another remarkable point is that independent directors were always a legal transplant that did not provide a good fit for the Indonesian corporate governance system, given its economic and legal institutions. First, independent directors emerged in response to the agency problem between managers and shareholders, prevalent under conditions of dispersed ownership in the US and the UK. Here, outsiders not beholden to management may be able to monitor on behalf of outside investors. In a system where controlling shareholders are typical, as in Indonesia (and most countries around the world), any director will find it difficult to assert their independence against a controlling family or government entity that completely dominates corporate affairs. In this situation, the institution may remain an attempt to market a corporate governance system to international investors, or to alleviate outside pressures from an international institution with a problematic one-size-fits-all perspective, such as the IMF or World Bank. For this phenomenon, the article uses the term “halo signaling,” which was coined by Dan Puchniak in earlier work.
The article also highlights that independent directors have all but disappeared from Indonesia since 2018, but that “independent commissioners” remain. In this respect, the authors provide useful comparisons to other “two-tier” systems. Notably, Dutch and German supervisory boards are more powerful than the Indonesian board of commissioners, due to their more strategic role and their authority to elect and remove management board members. Chinese and Japanese boards (in the latter case sometimes called “board of auditors”) have a more limited role focused on specific aspects of monitoring, which is why they are a better comparison for the Indonesian system, where the members of both boards are elected by shareholders. Parts of the literature consider the “board of auditors” model prevailing in Italy, Portugal, and Japan to be a third model besides the classic “one-tier” and “two-tier” ones. By contrast, the Anatomy of Corporate Law describes it as a modified one-tier model. Tellingly, the German discussion on independent directors was always focused on the supervisory board, and the issue of independent members of the management board was never even considered. It would probably be most appropriate to analogize the supervisory board in a two-tier system to the board of directors in the US one-tier system, and the management board to corporate officers.
Akbar et al.’s paper, therefore, leaves a lot of food for thought. In addition to these larger systemic points, it provides a wealth of detail on Indonesian corporate governance on the ground, informed by a set of semi-structured interviews conducted by the authors with independent commissioners. The paper concludes with a set of thoughtful recommendations for possible reforms in Indonesia. These focus on strengthening the representation of minority shareholders, policing related-party transactions, and mitigating the influence of politics.
Overall, the article is a highly rewarding read for anyone interested in comparative corporate governance. It opens a window into a relatively little-discussed part of the world, and at the same time, manages to raise important points of general significance for the field.
Cite as: Martin Gelter,
Finding Familiarity in the Unknown? Independent Directors in Indonesia, JOTWELL
(February 4, 2026) (reviewing Royhan Akbar, Nathanial Mangunsong, & Dan W. Puchniak,
The Abolition of Independent Directors in Indonesia: Rationally Autochthonous or Foolishly Idiosyncratic, __
Am. J. of Compar. L. __ (forthcoming, 2026), available at SSRN),
https://intl.jotwell.com/finding-familiarity-in-the-unknown-independent-directors-in-indonesia/.
Nov 19, 2025 Jedidiah Kroncke
Popular dissatisfaction with economic life has emerged as a growing challenge to countries across the globe. Magnified by growing inequality, this dissatisfaction stems from a sense that dominant economic institutions can no longer be relied upon to provide citizens with predictable and meaningful economic lives. Yet, even as nations have rejected left- and right-wing incumbents alike, there has remained only episodic engagement with one of the longest-standing alternative traditions for governing economic activity with a proactively social vision: cooperatives. In his article Investor Shares in Cooperative Financing: A Comparative Legal Analysis, Ville Pönkä provides a revealing primer on the challenges of promoting cooperatives through an incisive comparative analysis of “investor shares” as a means for cooperatives to raise capital.
For those less familiar with the literature on cooperatives, Pönkä provides a compact and effective introduction while outlining its interface with modern comparative corporate governance scholarship. This linkage is inherently valuable, as the particular nature of cooperatives has often led them to fall outside the analytical focus of both corporate and labor law scholars—although their conceptual and normative concerns significantly overlap with those of cooperative governance. And while, for practical and path-dependent reasons, the study of corporate governance has become one of the richest and most sophisticated areas of comparative legal analysis, it still largely omits cooperatives. As such, Pönkä’s survey of the statutory regimes governing cooperative forms is notable as it draws on diverse national examples—especially valuable given that much of the empirical work on cooperatives focuses on domestic audiences in non-English-speaking countries. Moreover, it does so while bringing the issue into direct conversation with classic and contemporary issues in corporate governance on a global scale.
For many, the term “cooperative” may evoke broad, utopian sentiments. But Investor Shares provides a clear and precise overview of the technical definitions and internal logics by which modern cooperatives are governed and regulated, even given their organizational variability. Pönkä emphasizes the fundamental principle of membership-based ownership in cooperatives—whether of the producer, consumer, financial, or worker variety. What further distinguishes cooperatives is their orientation to “maximize utility instead of profits.” (P. 343.) Here, “utility” is an amalgam of the direct services provided to member-owners and other social values—often open to quite heterogeneous member self-definition.
Pönkä provides this accessible background review to explore the tensions that arise when cooperatives seek capital from non-members. Among his many catholic studies of economic forms, Henry Hansmann noted that most modern companies could be characterized as “capital cooperatives,” whose organizational diversity was driven by their means of managing sources of internal and/or external investments. Pönkä outlines how formal “cooperatives” face similar challenges but are traditionally constrained by their commitment to have members be both the primary contributors of capital and co-equal participants in enterprise decision-making.
Such capital contributions are sometimes referred to as “member shares” but differ in their characteristics from those typically associated with shares of large public companies. Pönkä outlines the distinctive characteristics of traditional cooperative shares, including fixed governance equality among members regardless of capital contribution, free redeemability (but at par value), limited rights to dividends, and restricted transferability. Even here, there is significant intranational and international heterogeneity among cooperative regimes. Pönkä’s comparative expertise is on display as he effectively integrates the governance concerns these characteristics generate across quite different national regulatory frameworks. He also highlights how these attributes have driven innovations among individual cooperatives and the associations dedicated to their promotion. Another virtue of Investor Shares is that Pönkä situates investor share reforms within the longer trajectory of cooperative regulation, whose global and historical scope many may not initially appreciate—even if directly addressed or promoted in many nations’ constitutions.
The divergence of these characteristics with shares in non-cooperative enterprises presents the “capital constraint paradox.” (P. 344.) Cooperatives routinely require capital infusions for the same reasons as non-cooperative enterprises. However, they often face difficulties accessing debt or equity markets, for whom their non-normative organizational differences are off-putting, either due to general unfamiliarity or a lack of predictable returns on investment. It is this “paradox” that has increasingly pushed many countries to enable cooperatives to offer “investor shares” that deviate from traditional cooperative principles. Such investor shares stand out less among the many experiments in varying how cooperative profits are distributed, but do immediately introduce complications regarding how the divergent characteristics of these shares interact with cooperative governance.
The comparative breadth of Investor Shares reveals how diverse investor share reforms have been. Many countries have allowed cooperatives to freely design new governance arrangements on a purely ad hoc basis, such as the adoption of hybridized forms enabled by Limited Cooperative Associations statutes in several U.S. states. Other countries still mandate limits to investors’ governance participation, or outright ban any deviation from traditional cooperative governance, such as in Denmark.
Pönkä provides a more in-depth examination of Finland’s regulation of investor shares, especially probative as the country has one of the highest numbers of cooperatives throughout its economy, even as its government has remained relatively unmotivated to promote cooperative principles. After investor shares were first enabled in 1989, Finland subsequently enacted a series of liberalizing reforms to further encourage the use of investor shares, given their limited uptake. However, these reforms have never achieved significant success, even when cooperatives were allowed to declare profit maximization a priority value and investors were given veto rights over cooperative decision-making.
At this point, no one appears to be satisfied with investor share regimes. More liberalized and flexible regulatory regimes exacerbate the same numerus clausus-like informational issues for outside investors, and proponents of cooperative principles worry that they will incentivize existing trends of “demutualization” by prompting directors to prioritize quantifiable profits in how they interpret their fiduciary duties. (P. 357.)
Beyond its own internal conflicts, what is most provocative about Pönkä’s study is how directly it relates to larger controversies about corporate governance in “capital cooperatives.” In recent decades, stakeholder or stewardship models of corporate governance have taken center stage in global debates, stemming from the same aforementioned dissatisfaction with the social consequences of profit-maximizing and director-primacy models. As academically popular as some of these alternatives have become, their practical application has raised so far intractable parallel doctrinal and institutional questions about how to conceptualize the relevant governing constituencies and how to concretize consideration of the potentially limitless alternative values beyond profit maximization.
These alternative governance models also replicate a core dilemma that cooperatives have long faced—their ability to exist within a larger economic ecology dominated by a different evaluative logic. Historically, the United States was one of the earliest and most prolific sites of 19th– and 20th-century cooperative experiments, as it appeared to provide new and “empty” spaces for entire communities to form around cooperative logics. This phenomenon led to the historical density of mutual insurance, credit unions, and producer cooperatives in the American Midwest that drew Hansmann’s attention. However, modern cooperatives rarely have the luxury of even localized densities and must interface with predominantly non-cooperative institutions while competing in national and international markets. As a result, Pönkä notes that investor shares are just one of many financing innovations that cooperatives have been forced to creatively utilize, ranging from crowdfunding to creating for-profit subsidiaries.
Here again, investor shares in cooperatives are not an idiosyncratic curiosity, but are a sub-species of larger dynamics within corporate governance. Any fixed relationship between ownership, profits, and governance for traditional share investing has been increasingly subject to aggressive customization, beyond critiques of the substantive reality of “shareholder democracy.” Non-voting shares and preferred stock are prominent examples, but almost fully customized regimes are increasingly apparent—notably those in both the United States and China which grant technology founders with minority stakes substantial retained powers, including veto rights. Such contractual modification is even now pervasive among credit unions, where, although the most successful internationalized form of cooperative economics, almost all new members unknowingly assign away proxy rights as they click through digital sign-up pages.
Pönkä’s precise review of the issues provoked by investor shares thus convincingly ends with a call to reconsider the ecological regulatory restraints on cooperatives, specifically in antitrust and tax law, rather than focusing on private legal engineering. Indeed, many non-worker cooperatives have long struggled with how to include non-member employees in their governance structures to promote broader social values—if at all, in the case of producer cooperatives. Here, Pönkä’s insights resonate with my own experience studying Employee Stock Ownership Plans, which similarly seek to reorient capital cooperatives towards worker well-being but centrally struggle with their routine separation of share ownership from governance rights through trust mechanisms. It is not coincidental that the long tradition of promoting “employee ownership” in the United States has experienced an uneasy, if not systemic, sociological split with worker cooperative proponents, precisely over whether the issue of worker empowerment is central to employee ownership promotion.
Methodologically, Pönkä also instructively outlines issues that have, perhaps unavoidably, arisen from the relative academic and political marginalization of cooperative governance. Though he has his own sympathies, Pönkä admits frustration that all too many studies of cooperatives are carried out by those seeking to compensate for this marginalization through less than rigorous comparative legal analysis. This can manifest as a tendency to overgeneralize cooperative successes (again, an inherent challenge for a minority economic practice), but more acutely in a lack of critical comparative analysis that does not take as seriously the very real national and sub-national regulatory variability under which cooperatives of different sorts operate. This is, in itself, the core challenge of comparative legal analysis, and an issue that the proliferation of cross-national comparison has often aggravated, rather than ameliorated.
Pönkä’s sober and comprehensive review thus necessarily generates more questions than answers, much like the current global anxiety over how to reorient economic institutions towards sustainable and meaningful lives for modern citizens. Ultimately, no amount of legal genius will ever be able to fully resolve what are essentially political problems related to the distribution of decision-making power within a given society. Still, the type of integrative comparative work that Investor Shares represents demonstrates how unproductive common framings, such as “socialism” or “capitalism,” can be when attempting to address concrete issues of economic organization that grapple with some of the most inveterate challenges of the human condition.
Oct 20, 2025 Rosalind Dixon
In her important new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law, Michaela Hailbronner turns her attention from constitutional transformation to its absence, or from the idea of large-scale, successful constitutional change to that of “Institutional failure … as a shorthand for a range of other terms such as policy or state failure, dysfunction and state failure, dysfunction, and structural or systemic deficits.” (P. 3.)
Institutional failure, Hailbronner argues, has been a focus of other disciplines such as economics and public policy for a long time—but lawyers, she suggests, are “as usual, late to the party.” (P. 3.) This is an omission to be rectified: By paying attention to discourses around institutional failure, we gain new insights about public understandings, “relationships and institutional self-perception.” (P. 5.) With a focus on institutional failure, new justifications for the expansion of institutional authority or action likewise come into view. This is true, Hailbronner suggests, whether those arguments are made explicitly or implicitly: the choice surely depends on who is talking and in what context.
Similar virtues apply to the study of constitutional amendment failure, or constitutional non-amendment: studies of this kind not only shed light on the necessary preconditions for successful constitutional change, they can also reveal deep-seated commitments or values within a society, which are impervious to change, and hence candidates for being understood as politically entrenched, small “c” constitutional values.
In either event, Hailbronner shows that arguments of this kind resonate both in theory and existing practice—including at an international level (Pp. 65-66, Part III), and in national contexts such as structural reform litigation. (Chapter 4.)
This claim fits with a growing body of comparative work on the idea of constitutional judicial review by courts as “representation-reinforcing”—or what elsewhere I have called “comparative representation-reinforcing theory” (‘CRRT’) and Stephen Gardbaum labelled “comparative political process theory” (‘CPPT’). Hailbronner herself notes this connection (Chapter 5), and the close affinities between her work and my own on “responsive” approaches to judicial review. (Pp. 13, 104-6.) That work, for example, makes arguments for broader and stronger forms of judicial review given evidence of three broad forms of institutional failure or dysfunction: democratic blind spots, burdens of inertia and sources of institutional or electoral monopoly power.
There are similar affinities with the work of other CRRT/CPPT scholars, including Landau, Cepeda Espinosa, Langford, Peterson, and Gardbaum. Hailbronner specifically acknowledges the connection to Landau’s work here (P. 49)—including his work on institutional failure. (P. 39.) She also usefully connects her own and others’ ideas in this tradition to theories of democratic experimentalism (Pp. 43-49), including leading American theories of experimentalism centred around structural litigation. (Pp. 84-88.)
Hailbronner’s arguments are likewise sympathetic to arguments about the shared—or in Aileen Kavanagh’s language “collaborative”—nature of institutional authority and responsibility for constitutional enforcement. (Pp. 41-42). This includes the sharing of authority between courts and legislatures, but also “fourth branch” or “guarantor” institutions.
Hailbronner, however, goes further than most scholars working in this tradition in applying a lens of institutional dysfunction to a wide range of institutions—including those between national and sub-national institutions, national and transnational institutions, and institutions at a transnational level. (Part III.) This is an important contribution. Constitutional scholarship is often rightly criticized for being overly court-centric. Not so Hailbronner’s work.
As constitutional scholars, we are often called out for overlooking the complex interactions between different levels of government, and sources of law. The same cannot be said for Hailbronner, given the extensive attention she gives to international, regional and national contexts, including federal systems. (Pp. 24-25, Part III.)
Hailbronner is also attentive to the two important dimensions of arguments from institutional failure: what might be called the “corrective” and “reform” argument. Corrective arguments are often backward looking in focus—or focused on the task of repairing past damage, or righting past wrongs. Reform arguments, in contrast, focus on how to make institutions function better in the future—and therefore on increasing institutional capacity, or improving institutional processes.
Hailbronner provides illustrations of both dynamics as arguments from failure for more active institutional oversight. The real challenge for Hailbronner’s theory—and similar CRRT-style theories—is how to account for the need simultaneously to promote institutional correction and reform. Too great a focus on reform can leave past harms unaddressed, and individuals lacking basic forms of justice. But too great a focus on correction can have its own perverse consequences.
As individuals, if our mistakes are consistently corrected by others, there is little reason to put in the time or effort needed to make positive change. The same applies to institutions. Too frequent a form of external correction of institutional failure can mean that institutional leaders lose the motivation—and sometimes even the public justification—needed to engage in reform. This is what Mark Tushnet calls the problem of “democratic debilitation”. And as Tushnet himself (along with Madhav Khosla) notes, part of the aim of public law should be to enhance state capacity—in all areas, including the constitutional domain. (P. 107.)
Hailbronner is alive to this trade-off. (Pp. 34-37.) This is one reason she develops a form of balancing or proportionality test that allows us to test the strength of arguments from institutional failure, compared to arguments from institutional restraint: a test that invites institutions to “assess the functionality, necessity and costs associated with the transgression of an institution’s ordinary role”, along with the “the likelihood of success” of any institutional intervention. (Chapters 5-6.) That is, prior to any intervention based on arguments from failure, Hailbronner invites courts and other guarantor institutions to consider (to paraphrase): (i) the number of alleged constitutional violations, (ii) the time frame involved (and whether they are repeated or not); (iii) their scale and gravity; and (iv) whether they were intended, or the product of government recklessness, negligence or oversight (Pp. 111-125), as well as the potential costs of intervention, in terms of institutional capacity, authority and motivation. (Chapter 6.)
This is a core part of the book’s contribution. Arguments from institutional failure are powerful, but must be carefully balanced against valid counterarguments—stemming both from traditional separation of powers concerns, and more functionalist concerns about institutional over-reach and debilitation. They must also be developed and applied with the risk of misuse/abuse in mind. And this is exactly what Hailbronner attempts to achieve in the latter part of the book. (See especially Chapter 9.)
The only remaining question is whether institutional actors themselves will be capable of applying this form of balancing test in a manner that shows fidelity to these concerns. Institutional capacity is one of the most frequent challenges posed to my own work on CRRT—and a powerful one. Do judges, for example, have the capacity accurately to assess the necessity of their own intervention? Or are they prone to over-estimate their own institutional significance, or efficacy, and hence duty to intervene to correct other institutions’ failures? Or conversely, will some judges under-estimate the need for such intervention, and adhere instead to a more formalist commitment to the separation of powers? The same could be said for a range of fourth branch or guarantor bodies, or even legislators.
One answer to this could be that Hailbronner’s test could usefully be elaborated in various institutional settings to provide more concrete, rule-like guidance to institutional decision-makers about how to approach this balancing task. This, for example, is the approach taken by Cora Chan in her important new book on Deference in Human Rights Adjudication.
Another could be that Hailbronner’s project must be understood as involving two-stages: one stage, which is now complete, involves the articulation of a scholarly vision for an institutional role that depends on arguments from failure; and another, as yet incomplete stage, which involves socializing judges, legislators and members of the fourth branch in this vision, its rationale, and what it entails for them as institutional actors.
This seems to me to be at least part of the answer to the institutional capacity question, and one that is far from insurmountable. It does, however, stretch our own capacities as scholars. But if there is any scholar capable of meeting that challenge—it is surely Hailbronner. And other CRRT scholars will be standing right beside her, as she seeks to answer it.
Sep 19, 2025 Hoi Kong
Erin Delaney’s Mapping Power: Constitutionalism and Its Colonial Legacy provides a novel and compelling conceptual framework for thinking about the relationship between constitutionalism and colonialism. Professor Delaney labels this framework “coercive constitutionalism” and situates it in a body of comparative scholarship that (1) calls for constitutional law to be decolonized (P. 385) and (2) understands decolonization to be an ongoing process, rather than a “once-off political event marked by physical withdrawal of the colonial administration.” (Justin Ngambu Wanki & Carol C. Ngang, Unsettling Colonial Paradigms: Right to Development Governance as Framework Model for African Constitutionalism, 18 Afr. Stud. Quart. 67, 67 (2019), quoted at 385.)
As is appropriate for a text that appears in a collection honoring Mark Tushnet, Delaney draws on aspects of Tushnet’s scholarship to develop her framework. First, she invokes Tushnet’s “understanding of law as power and social structure” (P. 386) and its attendant methodology of rich description. Second, she adopts an approach that Tushnet labelled “adjectival constitutionalism,” which seeks to identify various kinds of constitutionalism, rather than accepting that “liberal constitutionalism simply is constitutionalism.” (Mark Tushnet, Editorial, Varieties of Constitutionalism, 14 Int’l J. Const. L. 1 (2016), quoted at 387.) These two aspects of Tushnet’s scholarship inform how Delaney develops the idea of coercive constitutionalism.
Part I of this review essay identifies essential elements of Delaney’s conception of coercive constitutionalism. Part II identifies her chapter’s contributions to the comparative law literature.
I. Coercive Constitutionalism: Between Popular Agency and Coercive Structures
According to Delaney, coercive constitutionalism examines “the mutually constitutive relationship between coercion and agency in the colonial and postcolonial contexts.” (P. 391.) The approach assesses how much informed consent exists in constitutional orders that are pervaded by coercive power structures. As set out by Delaney, coercive constitutionalism involves three interlocking inquiries:
close analysis of ongoing power relations, both in the shadow of, and operating parallel to, the colonial (or hegemonic) power; a clear understanding of the cultural and political context to identify those who did not (or were not invited to) participate; and an assessment of the degree or quality of freedom for those in fact deliberating or participating. (P. 391.)
The first inquiry requires a nuanced understanding of coercive mechanisms in colonial and post-colonial contexts. Agenda-setting is one notable means of coercion. It arises when “fundamental questions of constitutional choice” (Sujit Choudhry, Old Imperial Dilemmas and the New Nation-building: Constitutive Constitutional Politics in Multinational Polities, 37 Conn. L. Rev. 933, 933 (2005), quoted at 392) are settled in ways that serve the interests of domestic and foreign elites. For example, British colonial decision-makers in Africa included in new constitutions bills of rights (and created courts to enforce them) to protect elite constituencies, namely “white settlers, domestic urban intelligentsia and foreign investors.” (Ran Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions, 25 Law & Soc. Inquiry 91, 137-38, quoted at 392.)
The second inquiry assesses how broadly the public can deliberate within a colonial or post-colonial constitutional order. Delaney cites the work of Semaghen G. Abebe to illustrate how colonial constitutional systems compromised broad public deliberation by transplanting western political and legal ideas into Africa, thereby “undermining the well-entrenched, informal traditional values that guided the lives of ordinary Africans for centuries.” (Semaghen G. Aghebe, The Relevance of African Culture in Building Modern Institutions and the Quest for Legal Pluralism, 57 ST. Louis U.L.J. 429, 433-34 (2013), quoted at 393.)
The third inquiry assesses the quality of deliberation within a constitutional polity. Delaney draws on James Tully’s scholarship to argue that the quality of deliberation in a constitutional system is compromised when people are limited to debating within the rules set by the system, rather than about the rules. (P. 393.) Thus, if a colonial constitutional system has fixed the agenda for what people can deliberate about, the quality of deliberation in that system is compromised, even if the system encourages broad public engagement with its institutions.
II. Contributions to the Literature
Delaney’s framework for analyzing the relationship between constitutionalism and colonialism contributes to the comparative law literature in two ways. First, the framework provides a counterpoint to two earlier comparative accounts that dealt with related issues. Second, Delaney provides normative guidelines for the project of decolonization that flow from her account of coercive constitutionalism.
The first account against which Delaney juxtaposes coercive constitutionalism—“imposed constitutionalism” (P. 387)—was developed by Noah Feldman to analyze constitution-making under conditions of imperialism. Delaney seems to argue that imposed constitutionalism relies on an unduly demanding conception of agency. In Feldman’s account, an imposed constitution is one that is adopted without “the full agreement” of the people and thus undermines the value of self-determination. (P. 388.) Delaney argues that imposed constitutionalism has “limited purchase,” in part, because its articulation and use of self-determination as the standard for what counts as a democratic constitution is unrealistic. She asks: “[B]efore recent years, which ‘democratic’ constitutions could possibly meet this lofty ideal?” (P. 388.)
The second account against which Delaney argues—“transnational constitutionalism”—is drawn from the work of Frederick Schauer. Schauer shifts the focus away from the dichotomy that imposed constitutionalism draws between imposition and self-determination. He aims instead to understand how “mechanisms of political influence, economic incentives, regional cooperation and much else” determine “who influenced whom” in the “migration of legal and constitutional ideas.” (Frederick Schauer, On the Migration of Constitutional Ideas, 37 Conn. L. Rev. 907, 916, quoted at 389.)
Delaney identifies two shortcomings in transnational constitutionalism, which seem to indicate that the account pays insufficient attention to the role of coercion in colonial and postcolonial constitutional systems. First, Delaney argues that transnational constitutionalism fails to recognize the ways in which a colonial authority can exercise “covert coercion” when it “structures the available options and sets the boundaries of ‘acceptable’ borrowing.” (P. 390.) Second, she suggests that transnational constitutionalism does not explain how “[i]nfluence shades into coercion.” (P. 390.). According to Delaney, the line is drawn at the point where a population no longer has the “capacity to resist.” (P. 391.)
Delaney concludes her chapter by articulating coercive constitutionalism’s normative project. The three inquiries summarized in Part I of this review essay evince primarily descriptive or diagnostic objectives: “recognizing what has been created, how and from what starting point.” (P. 396.) The next, normative step in the coercive constitutionalist framework involves asking “How can agency be enhanced and coercion limited?” (P. 397.) She distinguishes her normative goals from those of comparative law scholars who focus primarily on undoing colonial power and revitalizing indigenous structures of governance. According to Delaney, that project of undoing “requires a view of current populations as denied genuine agency.” (P. 396.) By contrast, Delaney’s normative approach presumes the existence of agency in colonial and post-colonial contexts and seeks to enhance it.
Delaney finds evidence of coercive constitutionalism’s normative position in Jorge Farinacci-Fernós’s discussion of the 2009 Bolivian constitution. According to Farinacci-Fernós, the Indigenous population’s extensive participation in the Bolivian constitutional drafting process “carried enormous weight”, which was reflected in the substance of the constitution. (Jorge Farinacci-Fernós, When Social History Becomes a Constitution: The Bolivian Post-Liberal Experiment and the Central Role of History and Intent in Constitutional Adjudication, 47 Sw. L. Rev. 137, 150, quoted at 397.) The Bolivian constitutional order thus facilitated a meaningful exercise of Indigenous popular agency. Yet, features of the Bolivian constitution remain rooted in the colonial legacy of what Farinacci-Fernós calls “modern constitutionalism.” (Id. at 144, quoted at 397.) As a consequence, although the Bolivian reform affirmed the agency of the Indigenous population, it did not eliminate colonial “vestiges” in Bolivia’s constitution that were coercively imposed on that population. (P. 397.)
Delaney has contributed enormously to the field of comparative law by posing her normative question and providing an analytical framework within which it can be answered. I anticipate that scholars will take up the challenge of both answering the question and applying the framework in diverse colonial and post-colonial settings. And I believe that Mapping Power: Constitutionalism and Its Colonial Legacy will emerge as a classic in the field.
Editors note: Reviewers choose what to review without input from Section Editors. Jotwell International Law Section Editor Erin Delaney had no role in the editing of this article.
Aug 6, 2025 Sanja Pesek
In an era marked by escalating political polarization, institutional erosion, and mounting threats to democratic governance, the volume Drivers of Authoritarianism: Paths and Developments at the Beginning of the 21st Century, edited by Günter Frankenberg and Wilhelm Heitmeyer, offers a profound and analytically sophisticated examination of contemporary authoritarian dynamics. Grounded in legal, sociological, and political theory, this interdisciplinary collection is particularly timely against the backdrop of what empirical data shows to be a global authoritarian trend.
Throughout its seventeen chapters—covering the theory and empiricism of authoritarianism, in its global, local and state iterations, via media, identity politics, capitalist economy, and social crises, this volume raises fundamental normative and empirical questions: What constitutes legitimate authority in an age of technocratic governance and media-saturated political life? How can democratic polities ensure robust oversight and inclusive participation without lapsing into proceduralism or populist reaction? What forms of institutional imagination and civic mobilization are required to resist authoritarian retrenchment?
As the 2025 Varieties of Democracy (V-Dem) Report—“25 Years of Autocratization – Democracy Trumped?” documents, liberal democracies have been steadily shrinking to become the least common regime type globally (only 29 in 2024). For the first time in more than two decades, the number of autocratic regimes (n=91) has surpassed that of democracies (n=88). Consequently, approximately 72 percent of the global population now resides under autocratic rule, a development examined by the authors of Chapters 2 through 5 in Part II of the volume. The mechanisms of authoritarian entrenchment—media censorship, electoral manipulation, and repression of civil society—are widespread. While some countries have exhibited democratic resistance (V-Dem identifies 19 states as currently undergoing episodes of democratization), the predominant trajectory remains troublingly authoritarian. In this alarming context, Frankenberg and Heitmeyer’s volume offers crucial conceptual clarity on the main drivers causing this transformation.
One of the volume’s chief contributions lies in the careful conceptual distinctions it draws between populism, illiberalism, and authoritarianism—terms often conflated in both popular discourse and academic analysis. In the introduction, the editors convincingly argue that populism, despite its ubiquity in political science literature and public commentary over the past two decades, lacks a stable analytical framework. The term is frequently deployed to denote a broad spectrum of political phenomena, ranging from participatory movements enhancing democratic inclusivity to strategic appeals utilized to erode democratic norms. As such, populism, in this volume, is shown to be too conceptually imprecise to serve as an adequate explanatory category for contemporary wave of autocratic tendencies.
Similarly, the concept of illiberalism is critically examined. The authors maintain that illiberalism is parasitic upon its liberal twin, and thus lacks the contours of a coherent alternative. They argue, quite compellingly, that the term “illiberal democracy” is an oxymoron, as the absence of liberal democratic fundamentals—including civil liberties, checks and balances, and an independent judiciary—precludes the designation of such regimes as democracies at all. Illiberalism, then, is better conceptualized as an ideologically thin veil for authoritarian aspirations.
In contrast, the concept of authoritarianism is shown to offer both empirical richness and normative traction. Drawing from sociology, political theory, and legal studies, the volume posits authoritarianism not merely as a formal regime type but as a dynamic relationship between rulers and the ruled—one in which authority is recognized, often voluntarily, but may become distorted or overextended, leading to coercive practices. Authoritarianism, unlike totalitarianism, does not rely on an all-encompassing ideological apparatus nor on ubiquitous terror, but instead on more ambiguous and flexible power dynamics that may flourish even within formally democratic institutions.
The volume’s analytical strength lies in its identification of the interwoven drivers of authoritarianism. These include structural crises (financial, ecological, and political) that create fertile ground for authoritarian rhetoric and policies; the resurgence of authoritarian ideologies crystalizing in threat narratives that exploit collective fears and suggest imminent societal collapse; identity-based polarization; the manipulative role of media and entertainment; gender dynamics and the politicization of gender roles; institutional erosion; and the interaction of global and national power asymmetries. This framework moves beyond monocausal explanations and instead accentuates the multifaceted nature of authoritarian resurgence in the early 21st century.
Of particular interest is Frankenberg’s and Heitmeyer’s argument in the introduction to the volume that contemporary authoritarianism has transformed its operational style. Rather than relying on overt coercion or ideological orthodoxy, modern authoritarian regimes utilize subtle instruments—especially digital and mass communication technologies—to manipulate public discourse and mobilize support. This transformation reveals that present-day authoritarianism can thrive within nominally democratic infrastructures, especially when leaders exploit crises and manipulate the performative aspects of political legitimacy.
A further unique and powerful contribution of the volume is its sustained attention to the urban-rural divide. Drawing on empirical cases from the United States, the United Kingdom, Hungary, Poland, France, and Germany, the editors illuminate how regional inequalities and perceptions of cultural displacement serve as flashpoints for authoritarian mobilization. These disparities cannot be attributed solely to economic inequality, as elaborated by the authors of Chapters 6 through 8 in Part III; they are also rooted in spatial identities and the dynamics of symbolic politics, as discussed by the authors of Chapters 9 through 11 in Part IV. Authoritarian actors effectively reframe such divides as cultural confrontations, invoking narratives of “authentic” rural identity versus urban “fake” multicultural identities sponsored by corrupt, cosmopolitan elites.
Central to the volume’s analysis is the discursive logic of authoritarianism—explored by the authors of Chapters 12 through 14 in Part V—which manifests recurrently across diverse national contexts. This logic juxtaposes “the real” people against “corrupt elites” and configures society in binary terms: the “moral majority” versus the subversive “other.” The contributors perceptively argue that such framings contribute to affective polarization and license authoritarian interventions. Particularly salient is their insight that the figure of the authoritarian leader frames themselves as representative of the people, rather than part of an elite class—thereby obscuring their own complicity in the reproduction of structural inequalities.
This insight might be augmented by reference to Olufemi Taiwo’s concept of elite capture, in his Elite Capture: How the Powerful Took Over Identity Politics (And Everything Else) wherein privileged actors exploit the institutional apparatus ostensibly designed to serve the public. Taiwo points to forms of privatization and deregulation—such as the extrajudicial systems of corporate arbitration—as instances of elite reconfiguration of legal authority. These processes, while legally sanctioned, may function to facilitate authoritarian policymaking under the guise of liberal governance. In this light, one could ask a compelling and underexplored question: Does the privatization of public goods—such as healthcare, education, and justice—represent not merely a neoliberal economic trend but a potential authoritarian shift in the locus and legitimacy of decision-making authority?
In Part VI, Chapter 15, authored by Professor Frankenberg and titled “Leviathan with a Beaked Mask,” is one of the most philosophically rich contributions in the volume. Here, Frankenberg interrogates how responses to crises—particularly public health emergencies such as the COVID-19 pandemic—have reconfigured the balance between law, authority, and individual freedom. He argues that law’s authority ordinarily rests on a reciprocal relationship between norm-givers and norm-followers. However, exceptional legislation enacted during crises may disrupt this relationship, converting legal subjects into mere objects of executive regulation. Of particular concern is the preventive logic of contemporary security law, which justifies expanded state powers without definite threats—shifting from concrete danger toward future risk management. Such developments, Frankenberg warns, carry intrinsically authoritarian features.
This chapter’s title evokes Hobbes’ Leviathan and aligns with Giorgio Agamben’s distinction between regular sovereign agents and those marked as exceptions—guards and doctors—in the biopolitical framing of state power. In this schema, the sovereign authority exercised through both police and medical institutions hints at the merging of biological and political governance. The challenge thus becomes articulating a defensible and democratic balance between public safety and civil liberties—not only in emergencies but more broadly amid a political grammar increasingly shaped by risk, fear, and preemptive regulation.
Drivers of Authoritarianism is not merely a survey of global democratic backsliding, but a scholarly intervention that invites critical interrogation of contemporary political developments. It serves as an essential resource for legal scholars, political theorists, sociologists, and concerned citizens alike. To understand—and above all, to resist—authoritarianism, one must approach it as this volume does: (self) critically, contextually, and with unwavering commitment to democratic ideals at home and globally.
Jul 10, 2025 Dalindyebo Shabalala
The first thing I read by Stephen R. Munzer was an article that he had done with Kal Raustiala, The Uneasy Case for Intellectual Property Rights in Traditional Knowledge, 27 Cardozo Arts & Ent. L.J. 37 (2009). There had been plenty of arguments made against providing protection for traditional knowledge (TK) and traditional cultural expressions, but that article provided a clear and challenging analysis for WHY providing protection was such a challenging theoretical problem, not just in the Global North but also in the Global South. In the most fascinating way, Munzer does this again in this article, once again providing a new and challenging reframing of the problem of resolving disputes relating to indigenous and traditional knowledge.
In reading this article Munzer does two things here that I especially appreciate. The first is that he brings the issue of disputes between indigenous communities and their member/citizens and disputes between one indigenous community and another up to the same level of analysis and concern as that of indigenous communities and non-member/non-citizens. I believe that due to the focus on current negotiations at the World Intellectual Property Organization (WIPO) on new instruments for protection of traditional knowledge and traditional cultural expressions the tendency has been to focus on misappropriation across borders by non-members/non-citizens, perhaps missing other avenues for enforcement.
Secondly, he re-emphasizes that the difference between indigenous and traditional knowledge (IK/TK) really matters because the nature of the disputes and how these disputes are resolved within nation states fundamentally differs between the two. In particular, the difference in political status affects the applicable law, the nature and scope of types of claims (control rights vs Income rights); standing as well as other civil procedural issues.
The details matter, however, and Munzer’s framework does much more. He provides a framework for doing strong comparative work on the ways that different national systems resolve IK/TK and traditional cultural expressions (TCE) disputes. This is crucial in helping us do explanatory work for why some systems provide better dispute resolution than others that goes beyond the more obvious political economy and legislative explanations. Munzer’s categories suggest that there are characteristics inherent in the nature of the disputes and the nature of the parties that may provide greater and more useful answers and lead to better explanations for outcomes in such disputes. I provide a basic outline of his framework below (P. 35):
| Preliminary Distinction | Control Rights (Autonomy Interest) | Income Rights (Distribution of Surplus) | | |
| Category 1: The nature of the TK at issue | Indigenous Knowledge | Traditional Cultural Expressions | | |
| Category 2: Dynamics between named participants | Indigenous Community vs. Non-Indigenous Third Party | Indigenous Community vs. One of its Members | Indigenous Community vs. Indigenous Community | Pleadings and Joinder: Impleader, Interpleader, etc. |
| Category 3: Indigenous Claimants | “On-Stage” (named in Cat. 1) | “Off-Stage” (not named in Cat. 1) | | |
| Category 4: Normative Systems within which Disputes are Settled | | | | |
His first component distinguishes between income rights and control rights, noting that many claims that can be categorized as control rights might more easily find purchase within municipal court systems in the Global North, compared to income rights. In particular, this may enable claims not specifically reliant on the existence of intellectual property-like protections.
His second component makes the very valuable distinction between IK/TK and TCE, noting that claims over TCEs, especially income right claims may find more purchase in statutory or common law courts in national systems.
The third component specifies the types of dynamics between individuals/entities who are involved in IK/TK disputes: Indigenous Community vs. Non-Indigenous Third Party; Indigenous Community vs. One of its Members; Indigenous Community vs. Indigenous Community; and the procedural relationships of joinder and pleading. His examination of this category does such a good job of pointing out how many IK/TCE disputes involve members of the indigenous community. There’s a great example, drawn from Miranda Forsyth’s work, of the dispute over the rights to make certain tattoos in Samoa between the traditional two-family group that had the right, and other citizens who claimed a right to do so and to innovate around tradition.
Munzer’s fourth component is named (on stage) vs. unnamed (off stage) interest holders/claimants. It combines with the third to highlight the ways that named participants can sometimes represent and other times act against the interests of unnamed or off-stage participants. Munzer’s insight in this component is that traditional principles of civil procedure related to joinder, pleading and applicable law can resolve some of these disputes even in statutory and common law courts. He notes that such disputes rarely stay within the traditional customary law of the group but usually involve appeals to national courts outside the jurisdiction of the indigenous group.
His final grouping addresses the normative frameworks in which disputes are addressed. This is going over territory covered in other places, but Munzer points out that litigation strategies play a large role in how these are combined in each jurisdiction. The successful resolution of disputed is in part defined by how normative frameworks in the other categories in the framework.
Overall in treating the normative framework for indigenous/traditional knowledge protection as only one of the determinative factors in the framework, Munzer does us a great service as comparative legal scholars. We have sought to find a complete explanation for differential outcomes in levels of protection in statute or treaty but the combination of normative frameworks in each country has not always provided that. Placing it in its proper context helps us see why there may be successful claims brought forward even in the absence of strong normative frameworks such as legislation. This lesson is crucial for the field.
For myself, I take some comfort from Munzer’s work that there is real utility in further exploring private law approaches to enforcing rights and claims to indigenous/traditional knowledge, and as with his earlier work, I suspect that this article will be a constant future touchstone and reference.
Jun 13, 2025 Shubha Ghosh
Professor Stavroulaki of Saint Louis University School of Law and a PhD graduate of the European University Institute has made an important contribution to the fields of health law, United States antitrust law, European competition law, and economic analysis of markets in this broad-reaching and potentially game-changing book. For the purposes of the International and Comparative Law JOTWELL section, her book is also a major work of comparative law, setting forth elegantly comparative features of US and European competition laws as applied to health care markets. The book as a whole and the last three chapters that take a deep dive into comparative law make Professor Stavroulaki’s work one I like a lot.
Framing this monograph is a critique of current approaches to competition law in the United States. Professor Stavroulaki starts from the traditional criticism of economic analyses of competition issues as focusing too much on the promotion of efficiency. Not only is efficiency gauged in stark quantitative terms, but it is also shaped in terms of consumer welfare, specifically the benefits to consumers from improved market competition. These benefits, under the current approach, are measured in terms of price reductions which allow for more consumers to be served with larger gains to individual purchasers. Professor Stavroulaki does not fully reject the consumer welfare approach, which has been the object of criticism by the Neo-Brandeisians (a criticism that underlay the alternate approach of the Federal Trade Commission under the Biden Administration). The Biden effort has been stopped by the new Administration, but it is not clear what has come into place. Professor Stavroulaki offers an approach that builds on the consumer welfare to consider the quality of what consumers receive in the marketplace in addition to the market’s ability to generate lower prices.
Quality is at the heart of Professor Stavroulaki’s analysis. That concept aids not only in disassembling the underpinnings of United States antitrust law, but also in highlighting the contrast between the United States and European approaches to competition law. With healthcare industries her focus, Professor Stavroulaki advocates for defining “quality in a way that reflects the notion that healthcare quality is a multidimensional concept consisting of the notions of effectiveness, safety, and acceptability” (P. 97). This wider definition “would incentivize the antitrust enforcers to create an analytical framework under which they would be able to balance the multiple components of healthcare quality against the harms caused to competition” (Id.) The Professor’s conception of quality to improve United States antitrust enforcement would harmonize it with the holistic approach of European competition authorities.
Put concisely, Professor Stavroulaki contrasts the market approach within United States competition law enforcement with the holistic approach within European competition law enforcement. The first emphasizes cost effectiveness and lowered prices; the latter takes into consideration questions of equity and access. Under the holistic approach, “competition authorities may extend the notion of consumer welfare in healthcare so that they can balance conflicts between the goals of competition and the non-economic facets of healthcare quality” (P. 185). An institutional split between the European Commission and European courts facilitates this holistic approach. The Commission initiates investigations of the factual basis for alleged competition law violations and makes legal determinations of anticompetitive behavior. The European courts review the Commission’s findings through appellate review. The courts also provide a forum for limited private disputes. As Professor Stavroulaki observes, the Commission takes an economic approach in its work while the courts take a pluralistic approach. The two institutions together make the holistic approach viable. Operating against the institutional backdrop of the Commission and the courts is the role of national and European legislation, what Professor Stavroulaki labels the regulatory approach. Competition legislation is more prominent in Europe than in the United States. For example, the Competition and Markets Authority in the United Kingdom established regulations for mergers and acquisitions. Professor Stavroulaki recommends that such regulations as they apply to the healthcare industry should transparently and effectively take into consideration the objectives of healthcare policy in guiding the industry to provide quality and accessible healthcare.
Professor Stavroulaki offers an approach to competition policy in the health care industry that builds on traditional antitrust principles from the United States and lessons from Europe. She emphasizes that the market-based approach to price competition is consistent with the promotion of quality. It is also valuable for transparency and correcting political or other biases in competition law enforcement. But the market-based approach is incomplete. The approach needs to be broadened to include the perspectives of other actors in healthcare in addition to patients, such as medical professionals and health care policies. The holistic and regulatory approaches serve to complement and expand the market-based approach. While offering flexibility and coordination between competition and healthcare policies, the holistic and regulatory approaches can be complex which can work against transparency. But these two approaches expand the ambit of competition law beyond narrow economic considerations to recognize the ways in which the market shapes the provision of health care.
Professor Stavroulaki’s analytical framework to assess antitrust issues in the healthcare industry is dense and rigorous. Its relevance is emphasized by her application at the end of the volume on issues related to the current issue of data privacy in health care mergers. The two examples presented are the Google/Fitbit merger, cleared by the European Commission in 2020, and the United Healthcare/Clear Care merger, challenged unsuccessfully by the United States Department of Justice in 2022. In each case, a critical issue was the potential anticompetitive effects of access to patient data. Also in each case, the reviewing body considered issues of data privacy in addition to the market effects of the merger. The approaches were holistic and guided by relevant legislation, as appropriate under the regulatory approach. Even if the mergers were approved partly on the grounds that data privacy would be protected by governing legislation, the analytical frameworks used in the two cases illustrate the approach Stavroulaki advocates. Against the politics of large tech mergers and hospital mergers, Professor Stavroulaki’s approach is analytically rich and outcome neutral. Whether it might ultimately be no different from a pure market analysis in terms of result is a point of debate. But it is hard to question Professor Stavroulaki’s contributions to the debate.
This monograph is worthy of several close reads. It contributes not only to the field of competition law but also through several chapters uses comparative analysis to construct a more comprehensive approach to the intersection of health law and competition law, offering a contrast between the United States and Europe. Scholars and students of these varied and overlapping fields should take note of this work. Within its pages is an invaluable method for comparative competition and health law. Professor Stavroulaki has laid a profound foundation for future work. The fruitfulness of her approach is illustrated by her forthcoming article in Northwestern Law Review on health care deserts in the United States, another piece of scholarship worth reading. This book is not only about quality, but also an exemplar of scholarship we like lots.
May 20, 2025 Verity Winship
Luca Enriques, Matteo Gatti & Roy Shapira,
How the EU Sustainability Due Diligence Directive Could Reshape Corporate America, available at
SSRN. (April 27, 2025).
Corporate America may face an unusual pairing in the fight over corporate responsibility for human rights and the environment: EU rules and US enforcement. The potential for this (unintentional) partnership is the subject of How the EU Sustainability Due Diligence Directive Could Reshape Corporate America. The article considers how the EU Directive on Corporate Sustainability Due Diligence (CS3D) will affect US companies, focusing on a “unique combination of the EU ambitious regulation and the US robust private enforcement landscape” (P.1).
The EU directive has a sweeping geographic reach, extending beyond EU boundaries. It requires “every large corporation operating in the EU market” to “conduct due diligence on how its operations affect human rights and the environment” (P. 8). US companies with significant EU revenue are pulled in. The directive’s influence also cascades down to smaller companies as these large multinationals must monitor their “activity chain” worldwide (P. 10).
The sustainability directive does not impose liability on corporate directors. In fact, Member States rejected a proposal that included such liability (P. 12). This is where US litigation comes in. The authors explore how the European mandate interacts with corporate director liability in the US.
Two developments in US corporate law make the authors optimistic about the pressure that potential fiduciary-duty litigation may exert on companies. First is the post-2019 change to Delaware corporate law that strengthens directors’ legal obligations to oversee the company, design reasonable compliance systems, and catch and act on red flags (“Caremark duties”). These duties, combined with increased access to corporate information through pre-filing “books and records” requests, are revitalizing litigation over directors’ oversight responsibilities.
As the authors acknowledge, liability imposed through court judgments remains unlikely. Reputation, settlement amounts, and shifts in attorney advice and compliance norms are more probable mechanisms of pressure.
In addition to legal developments in corporate law and about sustainability, the article engages with the concept of the “Brussels effect,” which describes the EU’s indirect regulatory influence beyond its borders through market mechanisms. (See Jotwell review of Anu Bradford’s work.) The authors note that this instance differs from the classic description because it involves direct regulation by the EU (P.6), helpfully testing the concept’s boundaries.
In a global context of fast and unpredictable shifts, reading this article can sometimes feel like receiving a letter from a past world or a distant land. Take, for example, the article’s calm contemplation of the potential to “catapult human rights and environmental issues to the top of [US] corporate boards’ agendas” (P. 5). Occasional otherworldliness does not, however, detract overall.
In part, the article is particularly timely because of its implications for questions about conflicting requirements and the role of litigation. It provides a concrete example of conflicting mandates faced by multinational corporations, a problem that becomes acute when the corporation is told both that it must do X and that it must not do X. How should a company comply if paying attention to sustainability is both mandatory and prohibited? Navigating such conflicts may very well depend on the type of discussion here: understanding, for instance, what sustainability “due diligence” specifically entails.
The centrality of litigation brought by private parties is also a timely focus. It is possible to be a skeptic about fiduciary duty litigation as an effective tool, even with expanded Caremark duties. Nonetheless, the article prompts even these skeptics to think about the enforcement role of private litigants and litigation, a role that has become particularly salient as some of the traditional government actors are constrained.
In sum, How the EU Sustainability Due Diligence Directive Could Reshape Corporate America offers concrete and thoughtful analysis, contributes to multiple literatures, and raises questions about conflicting requirements and the role of litigation that are at the heart of this dynamic moment.
Cite as: Verity Winship,
European Rules, American Enforcement, JOTWELL
(May 20, 2025) (reviewing Luca Enriques, Matteo Gatti & Roy Shapira,
How the EU Sustainability Due Diligence Directive Could Reshape Corporate America, available at SSRN. (April 27, 2025)),
https://intl.jotwell.com/european-rules-american-enforcement/.
