Conceptually, “terrorism” is complicated. Although a definition is simply stated – terrorism is the unlawful use of violence for political ends, usually against civilians – the “unlawful” component of the definition and the “civilian” component blur quickly. An attack by a non-uniformed independence fighter on a police station closely aligned with military operations treads the line. So does the civilian who is willing to give coded warnings to fighters when regime forces enter a neighborhood. One man’s terrorist is another man’s freedom fighter, or so they say.
Notwithstanding the legal gray zones, there are national and international legal regimes dedicated to stamping out the practice. Enter Pooja R. Dadhania’s Paper Terrorists: Independence Movements and the Terrorism Bar, which tackles a discrete, specific ambiguity in the law of terrorism and proposes a practical, reasonable, and immediate measure that can be taken to bring clarity to at least a thread of the far more intricate tapestry. Her article is one I like a lot, and it is one with which I encourage scholars of this difficult area of the law to engage.
Dadhania’s focus is immigration law, and the complexities caused by the “terrorism bar” used to prohibit U.S. entry to those who have committed unlawful violence. Created by the 1990 Immigration Act and expanded in the wake of the September 11, 2001 attacks, the terrorism bar in the Immigration and Nationality Act (INA) precludes any noncitizen who has engaged in “terrorist activity” from most immigration relief, including asylum. The breadth of the term “terrorist activity” in the INA is “staggering,” she writes, “capturing conduct that may not be commonly considered terrorism and that would include the conduct of American Revolutionary War soldiers” and irregulars fighting for independence in 1776. In one vivid illustration Dadhania offers, an Eritrean applicant was denied for receiving physical fitness exercises and one rifle-shooting lesson from the forces fighting against Ethiopia during the then-as-yet-unsuccessful Eritrean war for independence.
The contribution Dadhania makes to this high-stakes debate is asking whether the applicant was working on behalf of an “independence” movement or whether it was an opposition movement. If the former, then both U.S. and international law permit immigration judges to determine that the applicant was engaged in lawful activities for a “state”. If the latter, the same activities would be “unlawful” as they would violate the law of the incumbent regime resisting the opposition movement.
Dadhania reviews the sources of the United States’ approach to the recognition of foreign states —from executive branch practice to the Restatement (Third) of Foreign Relations Law to the Foreign Sovereign Immunities Act to the act of state doctrine—to outline the possibilities, and sources of confusion, that now vex the application of the terrorism bar. After careful and detailed analysis, Dadhania recommends that adjudicators adopt the Restatement standard in the context of the terrorism bar to evaluate the lawfulness of a noncitizen’s conduct in furtherance of an independence movement. The Restatement bases recognition on “a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other states.”
The Restatement is particularly important because it incorporates the terms of the Montevideo Convention, which has been ratified by the U.S. and is broadly representative of either treaty or customary international law of nearly every country in the world. The Montevideo Convention dates to 1933, when Central and South American states argued that there should be uniform international criteria for recognition of statehood as part of a broader effort to reject the dispute or opposition to their statehood by former colonial regimes. Montevideo Convention parties agreed to criteria that made it easier for other dependent states with limited sovereignty to gain international recognition. According to Dadhania, the choice between alternative (what she labels “recognition-based”) standards and the Restatement standard is ultimately a decision about which branch of government is most competent to apply the standard as well as the standard’s accuracy. “In the area of foreign relations or issues that are directly adjacent to foreign relations, the common sensibility may be that the executive branch is more competent than the judiciary to make such decisions. However, the inquiry is more nuanced in the context of immigration law,” and therefore the judiciary is better suited to 1) make the determination and 2) apply a standard not complicated by the executive’s perhaps conflicting interests. The Restatement standard is fact-intensive – a feature that lends itself well to judicial application.
It is important to recognize that Dadhania’s article doesn’t address other areas where the Department of Homeland Security may enter evidence for disqualification based on prohibited activities; it just covers the subset of “unlawful “activities that have caused so much confusion. As she notes, determinations that implicate foreign sovereign immunity, diversity jurisdiction, or the act of state doctrine may have external consequences because they affect not only private persons, but foreign entities as well since courts are either granting or denying rights based on statehood.
Dadhania’s solution is elegant and straightforward and deserves the attention of the U.S. government, the scholarly community, and the immigration bench.
William J. Moon, Delaware’s Global Competitiveness
(Jan. 30, 2021), available at SSRN
Post-election headlines that Delaware is finally “on the map” after “centuries of obscurity” are anathema to corporate law scholars. Delaware has long been at the center of US corporate law. US corporations may choose where they organize, untethered to their physical location. This creates the tantalizing – and much-studied – possibility of a market for corporate law. In many accounts Delaware dominates that market, with the majority of Fortune 500 companies organized in the state. But the market for corporate charters is not just a domestic US market. It is also a global market. And in the context of that market, Delaware is not doing so well. In Delaware’s Global Competitiveness, Professor William Moon studies the place of Delaware corporate law in the world.
Moon steps into a crowded field, against the backdrop of decades of articles about the reasons for Delaware’s dominance, debunking or promoting or explaining the market for corporate law. But Delaware’s Global Competitiveness and Moon’s recent companion article Delaware’s New Competition fill a key gap. As Moon points out, the discussion of Delaware’s corporate dominance has almost entirely neglected the global scope.
Delaware itself has sought worldwide reach. The Delaware Division of Corporations has a globe as its icon. Its page answering “Why Incorporate In Delaware?” gives users the ability to “choose their language” from among “العربية, Deutsch, Español, Français, עברית, Nederlands, 日本語, Português, [and] 中文.” Moon suggests that these efforts have been unsuccessful.
Moon provides data to support his claims about Delaware’s growing “international unpopularity.” He examined all publicly traded foreign companies listed on American stock markets from 1985 to 2018, focusing on companies organized outside of their home country. While 30% of these companies were organized in Delaware in 1985, this percentage steadily decreased until it reached 11% in 2018.
Moon then digs deeper into the underlying documents about Chinese corporations listed on American Stock Markets. Interestingly, most are incorporated outside of China; they “actively shop for corporate law.” (P. 24.) And Delaware’s law is no longer a common choice. Whereas 40% were incorporated in Delaware in 1985, these numbers have dropped to single digits. In 2018, less than 5% incorporated there.
In digging, Moon uncovers the key fun fact of the article: More Chinese companies listed on American Stock Markets are incorporated in Nevada than in Delaware. Fun fact, at least, for followers of corporate law, who think immediately of Nevada’s special claim to being a “liability-free jurisdiction,” attracting all sorts.
Why is Delaware unpopular globally? Moon makes the plausible point that Delaware’s prohibitions on self-dealing transactions are an awkward fit with Chinese companies, which are set up as a tangle of entities that routinely engage in intra-group transactions. (P. 44.) The content of Delaware corporate law is the problem. One size does not fit all, and “good” corporate law may not be absolute.
Moon also addresses some of the other possible explanations for Delaware’s international unpopularity. There are two chief contenders. The first is a tax story. Moon’s data reveals the popularity of incorporating in well-known tax havens: Cayman Islands (62% of the Chinese companies studied in 2018) and the British Virgin Islands (13%). The Nevada incorporations come with US taxation, which complicates the tax story, but it is difficult to rebut fully. Likewise, the possibility that prized “foreign issuer” status drives incorporation choice is difficult to refute. Moon’s response is creative: he relies in part on the Nevada incorporations, but also draws on hand-collected information showing that these companies do not adopt Delaware-like corporate governance provisions.
One of the pleasures of this article is the questions that it raises. For example, which companies are shopping? And how has this changed over the thirty or so years in Moon’s study? An increased pool of corporations is “eligible to shop for Delaware law” as a “number of major foreign nations have relaxed legal restrictions that forced corporations to be bound by local corporate law.” (P. 18.) Brazil, Canada, China, India, Israel, Japan, the U.K. and the US all allow corporations with operations there to incorporate elsewhere. (P. 19.) Although Chinese companies are Moon’s focus, he also includes an intriguing mention of other companies and countries – for example the “’Amazon’ of Africa” was organized in Germany. (n. 17.) There is space, in other words, for interesting future study that builds on this article’s many strengths.
The modern story of Delaware corporate law – like other legal areas – is partially about the role of the United States in a global marketplace. By identifying shifts in the corporate law market, Moon’s work creatively and thoughtfully pushes the reader to consider corporate law’s global scope.
The Brexit referendum result in June 2016 brought to the boil a cauldron of constitutional politics that had been simmering since the piecemeal New Labour reforms of the 1990s. Those reforms were undertaken as a programme of constitutional modernisation in improving the legal protection of individual rights and in establishing asymmetric devolved institutions at the peripheries of the Union. Despite some radical rhetoric at the time, it was, in both style and substance, a very British kind of reform – incremental, pragmatic, careful to preserve a cherished narrative of historical continuity, and dismissive of theoretical grand designs. They were meant to be practical solutions to practical problems, which would enable the constitution to change sufficiently in order to carry on as successfully as ever before.
Except that this was not how it turned out. The changes to the regime of rights protection turned out to be, for some at least, a cultural revolution through the judicialisation of politics. The institutionalisation of democratically elected loci of popular sovereignty at the sub-state level turned out to be difficult to reconcile with the principle of the legislative supremacy of the Crown-in-Parliament upon which the rest of the unwritten constitution still rested. The judicialisation of rights protection and multilevel governance were both reforms that presumed UK membership in the European Union in perpetuity. When Leave won the Brexit referendum largely through English votes and against majorities for Remain in Scotland and Northern Ireland, these debates and especially the question of the UK’s continued territorial integrity have become engulfed in flames of passionate rhetoric and deep divisions. All of a sudden, the UK constitutional settlement finds itself in a very un-British place.
Even in the somewhat more rarefied atmosphere of academic discussions of the constitution, the sense that something is seriously wrong and that something must be done is never far away. It is in this context that the old debate about whether or not there is now a need to codify the constitution, in whole or in part, has assumed new relevance. Two new rigorously researched and persuasively argued books make important contributions to this debate from opposing perspectives. Admirably, both make their interventions into the UK debate in the context of comparative constitutional law, or more precisely, the way the field has developed in the post-World War II and post-Cold War waves of democratic constitution-making. In this sense both books make valuable general contributions beyond the immediate concern of the writtenness of the UK constitution.
The subtitle of Brian Christopher Jones’ Constitutional Idolatry and Democracy makes clear the author’s aim: “Challenging the Infatuation with Writtenness”. Jones defines ‘constitutional idolatry’ as “drastically or persistently over-selling the importance and effects of written constitutions.” The consequences of constitutional idolatry are threefold: it devalues politics and the democratic process; it is paternalistic; and it stifles constitutional maintenance. The first objection is based on the well-known ‘political constitutionalist’ perspective on the UK constitution. An idolised written constitution raises law and judges above politics and legislators and guts the vitality of politics and democracy, all based on the fallacy that constitutional norms have an independent and superior existence above the political. Secondly, constitutional idolatry is paternalistic because it assumes that the framers of the supreme text, and the judges who authoritatively interpret it, know what is best for the polity better than any other citizen. This paternalism also has the consequence of giving rise to the false expectation that the written constitution, necessarily an historically and spatially contingent thing, provides all the answers to every constitutional problem for all time coming. Thirdly, written texts ossify constitutions when what is needed is ‘constitutional maintenance’, i.e., the flexible, continuous, and undramatic change that keeps the constitution broadly in step with changes in society, culture, and technology.
In challenging the infatuation with writtenness, Jones systematically asks the sceptical questions that must be asked in any serious conversation about constitutional codification. Even if it is accepted that the traditional self-understanding of the British constitution is under terminal challenge today, he is right to ask how and if an attempt at introducing a written constitution would serve as a plausible solution. If the problems arise from a deep unsettling of a traditional consensus, what are the prospects of a new consensus being forged, codified, and moreover, (justiciably) entrenched? Why, indeed, is ‘constitutional unsettlement’ not itself the more plausible response in the face of politically salient divisions over Europe, human rights, juristocracy, and most of all, the institutional, territorial, and demotic pluralism of a plurinational union-state?
But is writtenness always the same thing as idolatry? Does writtenness always cause idolatry? A persistent question about the entire framing of Jones’s critique is whether he fixates too much on the American tradition. The American trait of constitutional veneration, after all, has not been followed in very many other places. As Ginsburg, Elkins and Melton famously showed, the mean lifespans of written constitutions are remarkably short at 17 years. In the liberal democracies, at least, this frequency of constitutional replacement surely points, not to constitutional idolatry, but perhaps to written constitutions being used more as instruments of a deeper political constitutionalism of the type that Jones approves.
For an answer to this question that looks to a written but proceduralist model of constitution and constitutionalism that was once (but no longer) familiar in mainstream UK public law scholarship, we can look to W. Elliot Bulmer’s Westminster and the World. This book is an elegant restatement of many of the arguments in favour of a written UK constitution from the heyday of that movement in the 1980s and early 1990s. These arguments would also be familiar to those engaged in constitution-making as part of effecting transitions from authoritarianism-to-democracy or conflict-to-peace in the Global South. However, there are at least two ways in which the contribution is original.
The first is the attempt to convince Burkean constitutional conservatives that a written constitution is not inconsistent with the organic and the incrementalist view of the British constitution. Bulmer’s ‘neo-Burkean’ argument goes as follows. Edmund Burke’s starting premise was that the constitution of the state is an inter-generational compact between the living, the dead, and the unborn. Such a constitution, preserving ancient liberties and evolved institutions, is better protected from the tyranny of transient parliamentary majorities by a written and entrenched document. Such a written constitution is not about the pursuit of abstract rationalist ideals in the Continental style, but an expression of the common inheritance of values and institutions derived from long and concrete experience. Moreover, as Burke recognised that limited and prudential reform was essential to the preservation of the inherited order, a written constitution may not merely express the status quo, but also effect those necessary changes. In developing this point, Bulmer has not become a Burkean conservative or abandoned his clear preference for the constitutional thought of Burke’s great radical detractor, Tom Paine. He is merely showing that the conservatism of one and the radicalism of the other are not as fundamentally irreconcilable as generally assumed.
Bulmer’s second, and perhaps the really serious, contribution of the book, is the theorisation he offers of ‘The Westminster Model as a Constitutional Archetype’. Somewhat ironically, perhaps, this aspect of the discussion may well be independently and more widely accepted among Bulmer’s readership than his main thesis about a written constitution for the UK. This model is the concrete instantiation of the marriage between the Burkean and Paineian traditions of constitutional thought. Recently there have been scholarly denials that the ‘Westminster Model’ is any longer a thing, if it ever was. Bulmer offers a robust response to such ahistorical political science. His multi-layered model encompasses the legal and the political, the normative and the descriptive, and the historical, institutional, and cultural dimensions that must all be accounted for in a proper theory of a model of constitutional state. The explanatory taxonomy of Westminster model states he builds towards the end of this discussion is the visual proof of his success in theoretical completeness. Using this as the basis to argue for the codification of the UK constitution will constitute a powerful appeal, including by answering some although by no means all of Jones’s concerns. But it is far from clear whether the disparate bodies of public opinion in the UK today, pushing and pulling in different and often opposed directions, are any readier to accept this historic ideal of British constitutional achievement than they have been in the past.
Neither Jones nor Bulmer, despite the sustained intellectual efforts represented in their very well-written recent books, are likely to fully convince their strongest detractors. That is testament to the scale of the division, or more likely, the indifference, of public opinion, rather than their abilities. But their efforts will be extremely well regarded by everyone looking for illumination and inspiration in the tortuous days that lie ahead in British constitutional discourse.
Cite as: Asanga Welikala, The Constitutional Codification Debate in the United Kingdom, JOTWELL (March 2, 2021) (reviewing Brian Christopher Jones, Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness (2020); W. Elliot Bulmer, Westminster and the World: Commonwealth and Comparative Insights for Constitutional Reform (2020)), https://intl.jotwell.com/the-constitutional-codification-debate-in-the-united-kingdom.
Matiangai Sirleaf, Racial Valuation of Diseases, 68 UCLA L. Rev. __ (forthcoming 2021).
The Covid-19 pandemic has impacted all of us, but not all of us equally. Far from acting as the great leveller, the disease that itself does not discriminate has revealed and exacerbated startling health disparities across the United States and globally. The early disaggregation of data indicated that Covid-19 mortality rates were more than double in Black populations than in White populations in the U.S., and were one and a half times as high, nationwide, in Latinx, and Indigenous populations. Infection rates, by population group, were also higher. The disparities of the global spread added further complexities. Now, as the Covid-19 vaccine has been developed in record speed, the challenge of distribution must incorporate facts about public health disparities alongside questions of prioritization. Two big questions loom: how much do our concepts of distributive justice and global justice incorporate racial justice? And how much should they?
Matiangai Sirleaf has given us a vocabulary, and a theoretical framework, to grapple with these issues. In her forthcoming article, Racial Valuation of Disease, she examines both the hierarchical valuation of racial groups in the context of disease, and the distributional consequences of that valuation. In developing the concept of racial valuation, she borrows from frameworks developed within critical race theory (CRT) and Third World Approaches to International Law (TWAIL), such as racial capitalism, intersectionality, “whiteness as property”, “interest convergence”, racial stratification, neocolonialism, and racial empathy gaps. These concepts, pioneered by Cedric Robinson, Kimberlé Crenshaw, Cheryl Harris, Derrick Bell, Robert E. Washington, amongst others, point out how past acts of violence, such as slavery, colonialism, and Jim Crow, continue to manifest in facially neutral policies and apparently color-blind laws. A powerful inverse of the moral valuation demanded by the Black Lives Matter movement, the racial valuation of disease provides a background to Covid-19 that demands a close reading – and that should help to provoke an array of structural, institutional and intellectual responses.
A scholar of global health and international law, whose past work sought to deepen our understanding of state responsibility and epidemics like Ebola and cholera, Sirleaf here delves into present and past incidents of structural, scientific and medical racism, to explore the unequal impact of disease. Structurally, she notes the institutions, policies, and practices that account for the inequalities between and among racial groups, including geographical segregation – de facto not de jure, as we know, but what’s that to a pathogen? – alongside racial, gendered, and socioeconomic trends in high housing density, food insecurity, inadequate schools, inaccessible, inadequate or biased clinical care, public transportation reliance, high crime rates, and employment stressors like hazardous jobs (including essential work), an absence of sick leave or adequate health insurance, or unemployment. These known social determinants of health – the conditions in which people “live, learn, work and play” as the Centers for Disease Control and Prevention puts it – affect health risks and outcomes. And these determinants are shaped, as the World Health Organization has described, by the distribution of money, power and resources, across local, national and global contexts.
Sirleaf brings these structural causes – familiar to the public health literature and the field of health and human rights – in direct interplay with historical examples of scientific and medical racism. Sirleaf thus presents her readers with some awful truths about the overt medical racism that was popularized during spreads of leprosy, syphilis, smallpox, HIV/AIDS, and other diseases. While she notes that the worst excesses of such racism have been safely discredited – from eugenics, phrenology and other pseudoscience – she warns of its current return, through race-specific patents in pharmacogenomics, for example, or the rise of personalized medicine. Indeed, Sirleaf notes that the pathologization of Black or Brown “culture” with disease prevalence has resurfaced during Covid-19.
Tracking the distribution of disease by racial group is of course essential. But that distribution creates its own distributive effect, which Sirleaf’s article also addresses. She warns that the coding of Covid-19 as Black and Brown may limit the prospect of an empathetic, collective, corrective response, and may explain the otherwise baffling use of “white supremacy” paraphernalia – swastikas, Confederate flags, and nooses – in the anti-lockdown protests that have challenged Covid-19 mitigation responses. Moreover, Sirleaf’s structural framework helps to explain why the US Surgeon General acknowledgement of Covid-19’s disparate impact by race, when accompanied by an apparently benign request for communities of color to “step up and help stop the spread” of the pandemic is, when the far more hazardous structural causes are known but unaddressed, both affronting to such communities and ineffectual.
Sirleaf’s use of CRT and TWAIL scholarship help reveal how surface reforms may backfire, and how individualized, personal responses and reckonings to disease may be insufficient. In applying and extending these powerful concepts to the terrible pandemic that is currently resurging within the US, as well as to its spread outside of the country, and to disease burden and mortality gaps more generally, Sirleaf has provided us with a grasp of the problem and a language to address it. This is notable scholarship, not just for its assessment of the scale of the immediate problem, but for the cogent deployment of important strains of both US and international legal scholarship, which were developed within distinctive legal research fields.
When the Black Lives Matter protests ignited the country, it was impossible to ignore that the disease distribution of Covid-19 sat alongside police brutality and mass incarceration as an urgent and shameful racial injustice in the U.S. As the Biden-Harris Transition Team prepares its program for “building back better”, two of its four listed priorities are Covid-19 and racial equity. Sirleaf’s work helps to illustrate how these two priorities are necessarily interwoven, and how deepseated must be the efforts to confront them. Her readers will also learn, too, of the global priorities that must be established as a result.
Constitutional democracy is under threat worldwide, including in Asia itself. Witness the banning of the political opposition in Cambodia, the ongoing role of the military in Thailand, or the actual and threatened expansion of executive authority in the Philippines. These trends also parallel broader patterns of democratic backsliding or erosion across the globe. Identifying ways in which courts can effectively help counter these trends is thus of enormous value in 2020, and beyond.
In her important new book, Constitutional Statecraft in Asian Courts, Yvonne Tew provides just such an account: she argues that courts in Asia – and specifically in common law, South-East Asian countries such as Malaysia and Singapore — can and should play a greater role in both helping build and protect resilient constitutional democratic systems.
A role of this kind, Tew argues, is clearly desirable from a constitutional theoretic standpoint: building a successful democracy, according to Tew, depends more on the creation of effective institutions than individual ‘heroic’ political leadership; and courts can play a central role in the protection and creation of these institutions through appropriately robust but flexible forms of review.
Tew suggests that courts in common law Asia have the formal legal-institutional foundation on which to engage review of this kind: they have entrenched written constitutions, a history of (at least semi) independent review, and formal constitutional commitments to the separation of powers, rights, and the rule of law. To date, they have tended to exercise this authority in a quite restrained, deferential way. But Tew suggests that there are indications in both countries, and especially Malaysia, of a more robust approach to the judicial role.
One of the most important contributions of the book is to suggest a doctrinal toolkit for courts wishing to engage in review of this kind – a toolkit based on a purposive approach to constitutional interpretation or ‘construction’, proportionality reasoning and the ‘unconstitutional constitutional amendment’(UCA) doctrine. And Tew suggests that this toolkit must be exercised ‘strategically’ by courts, including with close attention to the timing of court decisions.
Tew’s account of historical constitutional trends in Malaysia and Singapore is also a distinct and valuable contribution to the field. In chapters 2 and 3 of the book, Tew provides a rich contextual and historical account that builds in extremely productive ways on the several excellent single-country case-studies on this topic.
All of these arguments make a serious contribution to existing comparative constitutional scholarship. It is notable that Tew goes further than many other leading scholars in this context in arguing for a role for courts in both democratic ‘hedging’ and building. She also goes further in linking purposive interpretation and proportionality analysis to these judicial projects. And she makes a persuasive case that these tools help provide both sufficient legal justification and flexibility needed for successful ‘constitutional statecraft’ by courts.
The book also leaves open questions for further reflection: first, are the tools Tew identifies as key tools of judicial statecraft – i.e. purposive interpretation, proportionality reasoning and the UCA doctrine, together with the careful timing of court decisions – ultimately necessary to successful judicial statecraft in all cases, or rather helpful tools that may increase its chances of success in some subset of cases? My own sense is that they may be more or less necessary for effective constitutional statecraft in Malaysia and Singapore, but not necessarily elsewhere. In some cases, textualism or pragmatism may be consistent with a form of democratic hedging by courts. And proportionality may increase judicial flexibility but is not required for it. The US Supreme Court is arguably the exemplar of the use of the ‘passive virtues’ for strategic ends, and yet it relies on a form of tiered scrutiny rather than any explicit proportionality-style analysis.
Second, how confident is Tew that the nascent trends she identifies of greater judicial assertion and adventurism are likely to last, especially in Singapore? Tew herself notes the dialectic or unsteady nature of change in Malaysia in the last few decades; and the intimations of change she notes in Singapore seem at best incipient. It may, therefore, be too early to say that there is nascent support within Singapore, especially for the kind of vision Tew articulates.
Ultimately, however, this is a work of scholarly statecraft: it aims both to persuade readers globally of the importance and lessons of these Asian cases for theorizing about the relationship between judicial review and democracy globally, and to persuade common law Asian judges to follow the path set out by Tew herself. And in that context, telling those judges they are already on the path set out in the book seems more than politic. It employs exactly the same kind of mix of principle and pragmatism Tew is calling for from judges.
We can only hope that, like Tew, they are up to the task.
In 2020, the World Bank published the 17th annual Doing Business Report (DBR), openly tying it to salutary reforms in the 190 nations the report evaluates across a range of regulatory arenas. Academic inspiration for the DBR is routinely linked to the “legal origins” argument which classically claimed that countries with common law legal heritage perform better economically—most acutely by favoring creditors and minority corporate shareholders. Together, the DBR and legal origins scholarship (LOS) have enjoyed a mutually-reinforcing success leading to thousands of academic citations and numerous induced reforms across the globe.
Yet, the success of the DBR/LOS juggernaut is matched by comparative law scholars’ equally vigorous critiques of its systemic deficiencies. New iterations of such rejoinders are recurrently juxtaposed with comparative law scholars’ longstanding lament regarding the marginality of their perspectives in many international reform agendas. For all the intellectual energy devoted to this debate over the past two decades, Dan Puchniak and Umakanth Varottil’s Related Party Transactions in Commonwealth Asia now stands out as the clarion critique of the DBR/LOS approach.
The title of the paper may not seem to promise earth-shattering revelations. Its particular subject, related party transactions (RPT), deals with transactions between a corporation and those actors who may have sway over its decision-making or privileged access to non-public information. Puchniak and Varottil question the DBR/LOS presumption that RPTs are inherently pathological and thus an example where “good” corporate governance is essential to protecting minority shareholders from expropriation (and, following the favored causal chains taken as truisms by many, more dispersed share ownership, better equity markets, and then all good things economic). The paper thus takes direct aim at the most influential academic work responding to first-generation critiques of LOS by Djankov et al., The Law and Economics of Self-Dealing (DLSS) which informs the benchmark RPT regime the DBR references—a benchmark which idealizes Anglo-American approaches emphasizing private enforcement and considers RPTs as inherently pathological.
The article begins by noting that the “Commonwealth Asia” nations score incredibly well on the DBR rankings, with Singapore traditionally taking the top spot and Hong Kong, Malaysia, and India not far behind. Yet, the authors could not find a single private action challenging an RPT in the modern history of Singaporean corporate governance. In tandem, Malaysia has been recently wracked by corporate governance scandals involving RPTs which would seem to undermine any rubric which scores it as possessing a globally-leading regulatory regime. Parallel issues are reflected in Hong Kong’s publicly-oriented enforcement regime, and India’s many RPT enforcement challenges.
What Puchniak and Varottil reveal is how this empirical dissonance illuminates the fundamental, if not fatal, flaws in the DBR/LOS methodology. This methodology, now replicated in numerous other studies, involves a survey containing a hypothetical with clear self-dealing and wealth-tunneling that asks corporate and securities lawyers in each jurisdiction questions regarding applicable RPT regulations. These responses are then reduced to an averaged numerical score. What this method leaves out, and which is at the heart of any coherent functional understanding, are any questions regarding enforcement. It is simply coding the formal presence of laws. Such formalism accounts for the glaring mismatch between the DBR/LOS presumptions about good RPT regulation and the realities of the enforcement mechanisms in the Commonwealth Asia countries which it scores so highly.
The authors go beyond this general indictment of conceptual formalism to unpack the more specific presumptions which characterize the DBS/LOS treatment of corporate governance. The article notes three areas of complexity that are assumed away: 1) regulatory complexity (including enforcement norms), 2) shareholder complexity (including family and state-owned-enterprise (SOE) ownership, each with meaningful intra-and inter-jurisdictional heterogeneity), and 3) normative complexity (claiming most controversially that RPTs are not per se pathological and thus that greater formal strictness in RTP enforcement can lead to negative marginal effects). Here the article addresses the rapidly-improving set of empirical studies which have made comparative corporate governance so exciting as it moves beyond past pathologies of formalism and cultural hyper-determinism—now acknowledging the same complexities which have become de rigueur for any meaningful domestic study of corporate law. Puchniak and Varottil note that the DLSS piece which directly inspired the current DBR RPT evaluations contains only a single footnote where the authors admit that enforcement is not measured and likely “matters as much or more.”
For example, particularly interesting are the challenges high levels of foreign incorporation produce for Hong Kong and, increasingly, Singapore, which place controlling shareholders (largely in mainland China) beyond the practical reach of regulators. Additionally, both Malaysia and India rolled back anti-RPT reforms because of the consequences of their overly-strict approaches. Each such revelation demonstrates how little coding the presence of formal law achieves, effectively misleading far more than it enlightens by drawing attention away from where the regulatory action genuinely lies. And such misdirection shows how the a priori bias against public enforcement inherent in the DBR/LOS position further distorts the entire enterprise. Their conceptual critique inspires great confidence—if not certainty—that the same issues would arise in different configuration for the rest of the 190 nations so surveyed.
There are aspects of Puchniak and Varottil’s analysis that some might find questionable. They often elide divergence in US and UK regulatory approaches in their descriptive categories. Their claims as to the desirability of conglomerate corporate ownership are still controversial. But disagreement over any particular detail does not preclude agreement with how clearly they lay bare the methodological deficiencies of the DBR/LOS approach.
What remains unsaid in the article is why such issues with formalism can lead to such glaring empirical mismatches while also reaching such global levels of academic and political influence. Puchniak and Varottil do not fully address this issue, but it is implicit throughout that they have a broader concern regarding how the DBR/LOS approach impacts effective reform. Notably, Kenya recently leapfrogged Singapore in the rankings to claim the #1 spot, while Malaysia continues to enjoy its top five ranking even after its various scandals. This result stems from the fact a country like Kenya can simply copy formal laws on the terms the DBR favorably evaluates without enacting any enforcement reforms. This leads to not only typical iterative observer-observed problems but also very real pressures on countries seeking higher foreign direct investment to under-invest in genuinely productive reforms.
Perhaps cyclical critique could be attributed to the normal healthy progress of academic knowledge. The DLSS article generated its global survey by engaging the most notable critique of first-generation LOS scholarship in Holger Spamann’s “Law and Finance” Revisited. But such response was intra-methodological — improving the survey while leaving the fundamental issue of formalism untouched. Similarly, while most original LOS claims have been subsequently scaled back or qualified, many who still work within the LOS paradigm often resort to reductio ad absurdum conclusions that “history matters” for legal systems with colonial histories while still trying to find causal levels among hugely diverse regulatory ecologies.
But Puchniak and Varottil’s findings preclude any “normal” academic explanation for the persistence of the LOS approach and require acknowledging the sociological realities that give LOS its zombie-like resilience. Here their work resonates with the demand-side analysis by Terrence Halliday and Bruce Carothers’ regarding global insolvency reform as to how such reductive approaches resonate with the imperatives of international institutions. Such institutions take as predicate the assumption that identifying and encouraging universal best practices is core to their missions while also providing politically expedient cover for national regulators seeking to depoliticize their agendas. Indeed, NYU’s ‘Indicators Project’ demonstrates the seductive quality of problematically coded indical rankings across a range of fields. These indices create the possibility for a broad spectrum of research with putatively global impact that is cheap, validates strong ideological priors, and makes the translation of such priors into universal policy suggestions powerfully persuasive exactly because of their very formalistic superficiality.
All of which Puchniak and Varottil expertly reveal. The genuine drivers of RPT enforcement, often informal and path-dependent, are hard to measure using survey data. Their work demonstrates how the common methodological toolkit of modern economists is simply irredeemably insufficient to carry out such research without interdisciplinary collaboration, especially at any level of conceptual formulation or data collection. This insufficiency is far more severe than routine cautions about epistemological humility and the pitfalls of arguing for massive, costly legal reforms based on studies that bury their size effects behind the fetishization of significance tests.
One could imagine a claim being made that replicating their empirical excavation of Commonwealth Asia’s RPT governance would be too costly for a single academic study to conduct on a global scale. But given the resources of the World Bank, such a claim is hard to credibly countenance. If the topic is indeed of such global import, then requisite resources should be marshaled for its study rather than producing empirically groundless results for their own sake.
Perhaps this seems too aggressive a conclusion. I would simply advise any non-comparative legal scholar to consider a reality, if it is not one they already face, where the most powerful actor influencing reform in their home jurisdiction formulated and attempted to actuate knowledge produced in this manner about their field of legal expertise. Place oneself in the position of legal scholars who find themselves in a context where the influence of misplaced faith can be so overwhelming. In a world where reactionary populism is increasingly posed as the alternative to scientific expertise, such a reality may soon face even those jurisdictions once presumed to be global exemplars who abused the veneer of comparative law to exercise self-affirmation rather than self-reflection.
The constitutional politics of gender equality are never static – the pendulum appears in constant motion the world over, and no less for the US. As protections of equality and non-discrimination are now given in all but three of the world’s constitutions, and as women’s rights are given direct expression in 24, the constitutionalist promise of gender equality has appeared to be on a global upswing. And yet these trends are not everywhere the same. Indeed, with the tributes flowing in for the late, great and notorious Justice Ruth Bader Ginsburg last month, both for her legacy to global constitutionalism as well as to US constitutional law, the robust protections of gender equality in the US seem ever more fragile. It becomes vital to understand that legacy, and other feminist achievements, outside of US Supreme Court doctrine.
Enter Julie Suk’s wonderful new book, We the Women: The Unstoppable Mothers of the Equal Rights Amendment. In this carefully researched and extraordinarily well-timed intervention, Suk documents the historical trajectory, and the current import, of the Equal Rights Amendment (the ‘ERA’) in the US. The amendment requires that the “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”. By 1977, a total of thirty-five states had ratified the ERA, falling short of the three-fourths of the states prescribed by Article V. Yet despite this failure, the ERA (and with it, the second-wave feminist movement), received “de facto” support via constitutional interpretation of the Fourteenth Amendment. The constitutional politics, however, does not end there. In recent years, a wide range of feminist supporters have worked to formalize – and remove the judicial authorship of – this protection. In January 2020, after intense mobilization of feminist advocates in many places, Virginia became the 38th state to ratify the ERA. The constitutional status of the ERA is now a legal puzzle before several courts, who must address the question of both the legal effect of its apparent rescission by several states, as well as the status of its seven-year legislative deadline for passage.
The puzzle is deeply controversial, even as it is apparently moot. As Suk recounts, the National Archives and Records Administration refused to publish the ERA as the Twenty-Eighth Amendment to the US Constitution, on the advice of the Department of Justice Office of Legal Counsel (OLC). The OLC opinion, adopted by the Trump Administration, determined that the ERA had expired on March 22, 1979, given its explicit seven-year deadline, and that it could not be revived. Litigants are now contesting that question, both as ERA proponents (e.g. Equal Means Equal in Massachusetts) and opponents (e.g. Virginia’s and others lawsuit in DC). For many others, however, the question is unnecessary and irrelevant. Equal rights doctrine has found a persuasive foothold in the US since Ruth Bader Ginsburg’s winning brief in Reed. v. Reed and the later Fourteenth Amendment decisions by the Supreme Court.
Suk takes the long-term view, however, and notes the risks, perversions, and missed opportunities spelt out by resting on such a court-centric defence. In particular, she notes the relevance of the #MeToo movement, and the newer positions that have helped emphasize the intersectionality of gender with race and other status inequalities, as well as the newer stakes of affirmative action, reproductive rights, transgender rights, equal pay, and measures to end violence against women. She also notes the new drafted language for an equality amendment that has been offered by veteran advocates, encompassing both US developments and insights from international and comparative human rights law.
Suk has written We the Women for both lawyers and non-lawyers and she describes the promises of the ERA in highly accessible terms. She argues that its passage would boost women’s empowerment, particularly for mothers and mothers-to-be, and would help shore up efforts by Congress to affirmatively support gender equality, both at home and in the workplace. She describes the ways in which such an amendment would help parents with pregnancy, childbirth, and caregiving responsibilities, issues which, in the months since the book has appeared – as the coronavirus pandemic and lockdown have occurred – scream at many families in America daily, as with those elsewhere. She suggests that the passage would help include women as constitutional framers and authors, rather than leave the past (all-male) House Judiciary Committees or courts with the final word on equality and rights. By collecting the notable statements and motivations of the diverse range of women who have campaigned for the ERA, Suk also notes how the amendment would help present an understanding of equality for women of color, women with disabilities, transgender women, and immigrant women, and introduce more inclusive visions of gender, racial and economic justice.
This book thus provides a deft introduction to the contemporary context of the ERA in the US. Its historical references go yet deeper. Suk draws a comprehensible line between the early advocates of the ERA idea in the US (almost 100 years ago, in 1923, after the successful passage of the Nineteenth Amendment’s guarantee of women’s right to vote) and its defenders today. She does this without simplifying or sugar-coating that history, when ERA proponents adopted the singular perspective of white women of a particular class. In the early parts of the book, she describes the earlier scepticism of the “so-called equal rights amendment” by working women’s advocates, who saw minimum wage and other special labor protections under threat. In another set of chapters, she describes the later opposition by women in the 1970s, now made famous by a Hulu series which prefers to document the internal disagreements between women, rather than the much greater obstacles presented by men, or by the constitutional amendment requirements themselves. Moreover, she draws out a defense of reproductive health care by moving beyond the clearly important Supreme Court marker of Roe v. Wade into other battles and other stakes, which are related of course but deserve their own telling and accounting.
Suk is a comparative constitutional scholar, and her careful historical search was inspired, as she notes, by constitutional amendments abroad. These amendments, variously affirming equality of sex or gender, have helped created a transnational field of gender and public law, and the notable trends towards textual amendment cited above. Nonetheless, global constitutionalism has faced many challenges in the last decade, with numerous instances of backsliding and backlash. Since the late 2000s, powerful state-sponsored campaigns or other populist movements have adopted anti-feminist, anti-LGBT, or “anti-gender ideology” framings in Europe, such as in France, Germany, Italy, Hungary and Poland, and Latin America, such as in Colombia and Brazil. There are also homegrown examples in the US, where emotive anti-feminism has helped deflect or distort attention from other grievances, and worked to appease certain religious groups. These comparative developments give some pause for seeking any singular or straightforward triumph from ERA passage.
These lessons from abroad supplement the lessons of history. Suk makes a convincing case for Congress to declare the ERA as valid “whenever ratified” by three-fourths of the states, and thus retroactively remove or make redundant the seven year time limit that was imposed on the original proposal. She makes this case, based on the substantive benefits described above, as well as the peculiarity of the legislative seven year “poison pill” and its pernicious effect in burying amendments through the tactic of delay. It boils down, she writes in a gripping Epilogue, as to “whether or not the ERA is worth fighting for” (p. 181). Yet as the US awaits an election in which basic rule of law norms are not assured, one wishes the case against such a re-reading had also been considered by Suk’s reliable legal eye. The process checks of US constitutional democracy may be more important than ever, and the explanation of why a legislative deadline should be put to one side, and yet others safeguarded, is a highly generative question.
Whether the answer is found through a deeper engagement with global constitutionalist norms or through highlighting America’s own contribution to them (in terms of the support for gender equality and non-discrimination, self-government, women’s and LGBTQ human rights, or another basis), the case for declaring the ERA valid should be one that scholars everywhere should understand. The politics of gender equality is now, almost inevitably, a constitutional politics, and Suk’s book provides a clear explanation as to why the pendulum must swing so high for amendment in the US.
Marketa Trimble, The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies
, 23 Lewis & Clark L. Rev.
501 (2019), available at SSRN
Intellectual property rights are territorial. Infringement claims—of unauthorized copying, making, selling, using—involving patents, copyrights, trademarks, or trade secrets are extraterritorial. Courts are also territorial, and their jurisdictional reach often limited by geography. So, what happens when a successful intellectual property claimant seeks to remedy the wrong in the courts? How do extraterritorial harms map onto the territorial limits of courts and rights? In The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies, Professor Marketa Trimble offers a powerful analytic assessment of these issues, introducing new conceptual vocabulary and policy solutions. For innovativeness in framing and addressing an issue, Professor Trimble’s article is one that I like lots for the reasons I jot below.
To concretize the issue, Equustek v. Google, [20180 10 W.W.R. 715 (Can.)], provides the exemplary case. In Canadian court, Equustek alleged that Datalink, a rival computer hardware company, had stolen its trade secrets. When Datalink refused to comply with a Canadian court order, the company’s corporate officer fled the country, never to be apprehended. Equustek then sought an order in Canadian court against Google, seeking to have the company remove Datalink from all global search results. The Canadian court ordered this global injunction. With this example, we see a complex dynamic of intellectual property litigation across global boundaries.
Territorial courts adjudicating extraterritorial harms issue what Professor Trimble calls “extraterritorial remedies.” These are remedies, as the article defines, which “reach beyond the territorial scope of the underlying claim.” These extraterritorial remedies give rise to the “territorial discrepancy,” referred to in the article’s title. This discrepancy arises because the unlawful acts may extend beyond the boundaries of the infringing act. Professor Trimble gives the example of the unauthorized reproduction of a DVD that is made available on the Internet and downloaded across the globe. A copyright owner might bring her claim in a United States court and seek an injunction against distribution on the Internet. As Professor Trimble summarizes this simple example: “the injunction has global effects and the territorial scopes of the claim and the remedy overlap but are not identical–which results in a territorial discrepancy.”
Territorial discrepancy is closely related to cross-border remedies, which always reach beyond the territory of the court issuing the remedies. But cross-border remedies do not result in a territorial discrepancy because cross-border remedies follow the territorial scope of the claim. The two are identical in two cases identified by Professor Trimble. The first is when remedies arise from claims that have been based on the laws of countries in addition to the forum country and cover the jurisdiction of the other countries. The second is remedies arising from the forum country’s laws that apply extraterritorially, where the scope of the remedies corresponds to the extraterritorial scope of the law. A territorial discrepancy arises when the territorial scope of the remedies extends beyond the scope of the laws giving rise to the claims.
Professor Trimble provides many examples of territorial discrepancies across many jurisdictions. The trend is towards an increased prevalence of territorial discrepancies. Awards of foreign profits that can be traced to domestic acts of copyright infringement provide one example of the scope of the remedies exceeding the scope of the legal claim. Another arises from infringement claims involving distribution on the Internet, to return to Professor Trimble’s original example. A third example is the use of domestic remedies to compensate for or punish infringements of foreign copyright or patent. This third type of discrepancy arises from the availability of domestic statutory or punitive damages, enhancements that may not exist under foreign law.
Whatever the type of the discrepancy, the source comes from how claims are brought to a court. Considerations of personal and subject matter jurisdiction may shape which of many territorial courts is the appropriate forum for a dispute. Once an appropriate court is identified, plaintiffs must tailor the claim to the applicable law, including the relevant choice of law provisions. Furthermore, there are important differences across jurisdictions on how intellectual property rights are secured which affect whether a claim can be instituted. Some jurisdictions allow claims for unregistered copyrights, for example, and jurisdictions differ as to recognition of rights in designs or trademarks based on formalities with the relevant intellectual property agency. Differing rules of evidence will also influence the choice of adjudicative court and the remedies available within that court’s jurisdiction. Territorial discrepancy arises from a mismatch between remedies and claims as substantive and procedural laws vary across national courts.
Professor Trimble identifies a subtle but challenging problem. Territorial discrepancy raises concerns over national sovereignty and the exportation of intellectual property rights. These concerns highlight how, despite multilateral and bilateral treaties, intellectual property laws are heterogeneous. The Hague Judgments Convention provides some potential resolution by creating uniform global standards for remedies. Unfortunately, as Professor Trimble notes, the treaty excludes intellectual property from its coverage due to severe disagreement among intellectual property owners and other constituencies over what the uniform standards should be. Because the treaty offers no solution, Professor Trimble urges courts to resolve the discrepancy by either adjusting the scope of the remedy to the scope of the underlying claim or adjusting the scope of the claim to that of the available remedies. Neither of these are satisfactory because each would encourage intellectual property owners to pursue non-extraterritorial cross-border remedies to avoid the limiting moves of the court.
Professor Trimble’s ultimate recommendation is to have courts address territorial discrepancy through an individualized approach. In this case of injunctions involving unauthorized distributions on the Internet, individualization can include use of geolocation technologies to place geographic limits on access. Such highly individualized decision making requires consideration and prediction of policies in foreign jurisdictions that might limit enforcement of the remedy. In Equustek v. Google, the example case discussed at the start of this jot, the US court refused to enforce the Canadian court’s worldwide injunction against Google. When the plaintiff returned to the Canadian court with US court’s refusal, the Canadian court in turn refused to limit the injunction. Professor Trimble suggests that courts need to be more pragmatic in the scope of their remedial orders.
In Professor Trimble’s article, the dynamic of global intellectual property litigation gives rise to the phenomenon of territorial discrepancy. Absent a heroic treaty, only the pragmatic considerations of a judge can avoid this discrepancy. Professor Trimble cuts through a mass of complex, interacting legal materials to identify a subtle, and seemingly esoteric, problem. In turn, she offers a well-thought out and reasoned response that courts may not be ready or able to adopt. But this reluctance does not reflect a discrepancy of theory and practice. Instead, it illustrates the further complexities of global intellectual property litigation one which Professor Trimble offers a masterful perspective.
Cite as: Shubha Ghosh, Recognizing and Correcting a Discrepancy
(September 21, 2020) (reviewing Marketa Trimble, The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies
, 23 Lewis & Clark L. Rev.
501 (2019), available at SSRN), https://intl.jotwell.com/recognizing-and-correcting-a-discrepancy/
Duncan Ivison’s Can Liberal States Accommodate Indigenous Peoples? opens with the following questions: “Can liberal democracy accommodate the claims of Indigenous peoples? More precisely: can it do so justly?” (P. 12.) Ivison’s text is a rigorous and elegant response to these questions and essential reading for all who grapple with the circumstances of Indigenous peoples in contexts of “settler colonialism.” (P. 13.)
In the first chapter, Ivison identifies two key features of this form of colonialism. First, it involves “seizure and control of territory” that is justified by reference to “ideologies of civilizational and racial superiority and the denigration of Indigenous political institutions, philosophies, cultural practices and ways of life.” (P. 13.) Second, this process of “political domination and dispossession of territory” is “ongoing” and not a mere remnant of history. (Pp. 13-14.)
What, then, does Ivison mean by liberalism? He situates his arguments within “egalitarian liberalism”—a strand of liberal theory associated with John Rawls—which Ivison describes as a “cluster of arguments [that] seeks to reconcile freedom with social equality in both the political and economic sphere.” (P. 15.) For Rawls, the concept of “justice as fairness” provides the standard for assessing whether “the main social and political institutions of society” distribute goods fairly, as a procedural matter and as a matter of outcomes. (P. 17.) Ivison notes that in settler colonial societies, Indigenous peoples suffer from severe forms of social and economic injustice (Pp. 19-20) that “cry out for distributional redress.” (P. 20.)
Ivison adds structural considerations to this distributive conception of fairness and specifies their significance for the circumstances of Indigenous peoples. He argues that the background conditions of society—“the institutions, norms, practices and material conditions” that “enable and constrain individual and collective action”—can give rise to harms that Iris Marion Young calls forms of “structural injustice.” (P. 17.) These harms arise when background conditions are configured in ways that prevent individuals from exercising “their effective political agency.” (P. 19.)
In the context of settler colonialism, this focus on political agency is especially important since Indigenous peoples in liberal democratic states are “polities” or “generative sources of normative order.” (P. 16.) Settler colonialism denies the political agency of Indigenous peoples through ongoing processes of domination and dispossession, which efface Indigenous peoples’ status as polities. As a consequence, the legitimacy of the state in liberal theory “as the apparent protector of equality, freedom and toleration,” (P. 16) is put into question.
With these theoretical foundations established in the first chapter, Ivison turns in chapters two and three to assess whether liberal multicultural accommodations or aboriginal rights are adequate responses to the claims of Indigenous peoples.
In chapter two, Ivison argues that liberal multiculturalism aims to advance the universalist liberal values of “equality, autonomy, toleration and equal respect” (P. 23) and to “transform the identities and practices of both minority and majority groups, in line with liberal democratic norms of anti-discrimination, equality and basic human rights.” (P. 23.) For Ivison, this stance commits liberal multiculturalism to a “rich sense of equality,” (P. 25) according to which a “societal culture” (which he defines as “a territorially concentrated culture, centred on a shared language used in a wide range of societal institutions in both public and private life.” (P. 27.) that is dominant in a given context can create inequality by making it difficult for minority groups to sustain their cultural practices. (P. 26.) In response, multicultural rights—including rights to self-government and language rights—aim to protect “the structure within which people exercise their freedom and through which they make sense of the world.” (P. 27.)
Yet insofar as liberal multiculturalism assumes that the state has the authority to grant “recognition to a minority group’s claims for self-government or autonomy” (P. 28), the theory runs into problems when it is applied to Indigenous peoples. Ivison notes that “Indigenous sovereignty is an assertion of autonomy that is not dependent on the grant of that authority from any other entity” (P. 29) but rather “persists alongside that of the liberal state.” (P. 29.) This form of “normative pluralism” (P. 29) can call into question the state’s authority to recognize multicultural claims. And this challenge shapes the understanding of Aboriginal rights that Ivison articulates in chapter three.
Ivison claims that if “Indigenous peoples were sovereign and self-determining at the time of settlement, then Crown sovereignty can only be reconciled with their sovereignty through some mechanism of consent, or at least through means consistent with their freedom and equality.” (P. 36.) In settler states, this did not happen. Nonetheless, Ivison argues, this “ideal” (P. 36) can guide our understanding of the interests that Aboriginal rights aim to secure. These comprise “a bundle of specific rights to do with control over their territories and the various activities that occur on them; with political rights of self-government, and with their rights as citizens of both Aboriginal nations and the wider political community in which they reside.” (P. 36.) These rights place others under a duty (P. 34) to “protect and promote the basic interests of Indigenous peoples, both individually and collectively.” (Pp. 36-7.)
It seems that for Ivison, Indigenous sovereignty can in this way be accommodated within a liberal theory of Aboriginal rights: these rights aim to empower “Indigenous polities to address the social and economic disadvantages they continue to suffer from.” (P. 41.) Yet Ivison identifies a remaining, thorny question: if these rights are “grounded in liberal conceptions of the person and political institutions,” how can they be reconciled with distinctively Indigenous “political theories and institutions”? (P. 42.) The final chapter of Can Liberal States Accommodate Indigenous Peoples? answers this question.
In chapter four, Ivison defines a normative order as “a cluster of values, beliefs, and legitimation ‘narratives’ (religious, cultural, moral, political and legal) that people appeal to in order to justify (and contest) the practices and institutions they are both subject to and help constitute.” (P. 50.) A liberal state, Ivison notes, is comprised of a constellation of normative orders, and the challenge for liberal theory is to reconcile this “plurality of normative authority … within a single political entity.” (P. 52.)
The key question, then, is: How can power in a settler colonial state be exercised in ways that members of the plural normative orders within the state can (in Rawls’ terms) “reasonably be expected to endorse”? (quoted at P. 53.) Ivison’s response is to require that political decisions “be justified to citizens” on the basis of “reasons that can be endorsed from a range of different perspectives and that emerge from the bottom up—through ongoing, historically situated, multi-perspectival public reasoning—as opposed to ‘top down’ state-based reasoning.” (P. 54.)
Ivison provides an example of this kind of “multi-personal” reasoning (P. 54.) when he analyses the 2017 protests of the Standing Rock Sioux Tribe. These protests aimed “to uphold” the Tribe’s “treaty rights and block the US government from allowing an oil pipeline to run across their lands and near to rivers they depended on for a range of purposes.” (P. 57.) Ivison argues that in analyzing this kind of action, we should consider issues that would be salient to a diversity of perspectives. These would include: the existence of a treaty right and the importance accorded to the land and rivers within the Indigenous normative order; the possibility that denying access to the land would impose severe harms on individuals who are not members of the Indigenous group; and the relevant colonial history of dispossession. (P. 57.)
Moreover, Ivison argues for “institutional innovation” that will create “the conditions in which these complex and sometimes conflicting claims can be discussed and mediated.” (P. 57.) In settler colonial states these innovations would involve developing: “ways of deliberating about the past democratically;” (P. 57) the capacity “to see the world from the perspective of another”; and “a shared set of practices and reasons for going on together.” (P. 58.) When seen in in this light, Indigenous movements provide “an extraordinary resource for free societies,” as they “expose enduring injustices” and “propose new ways of addressing them.” (P. 58.)
For those of us who share Rawls’ understanding that the essential content of a constitution includes public reasons that “all citizens as free and equal may reasonably be expected to endorse,” (quoted at P. 53) Ivison lays down a challenge: how can we innovate so that constitutions and the procedures of constitution-making facilitate multi-personal public reasoning? The institutional and doctrinal answers we provide may also partially respond to the crucial question posed by the title of Ivison’s masterful text.
Stephen Gardbaum, Comparative Political Process Theory
, 18 Int'l. J. Const. L.
__ (forthcoming, 2020), available at SSRN
The United States is a democracy in crisis. Deep-seated institutional racism and ongoing systemic threats to the political process in the United States demand our active attention. The challenges to American representative democracy that John Hart Ely outlined in Democracy and Distrust—voter suppression and systematic political disadvantage due to discrimination—and his arguments for remedial representative reinforcement seem more salient than ever. But what of the global crisis? Democracies around the world are faltering. Do Ely’s insights have purchase for Poland or Hungary, South Africa or Turkey? Stephen Gardbaum persuasively argues that they do, albeit after some elaboration and refinement, in his new piece, Comparative Political Process Theory, forthcoming this winter in the International Journal of Constitutional Law. (The article will also be the focus of a set of ICON Debate! commentaries, published in the same issue.) Using Ely as inspiration, Gardbaum provides a new and broader framework for identifying and categorizing political process failures in representative democracy, and explores a wider set of remedies for these breakdowns, including—though not limited to—judicial review.
A political process failure is the violation of core democratic procedural values or principles either by “delegitimiz[ing] the relevant process” through a singular grave occurrence, or by “systematically undermin[ing]” them over time. (P. 33.) And to ground the analysis, Gardbaum identifies a minimum slate of these core democratic procedure values, including robust political competition and contestation; pluralistic governance; differentiated institutional roles; accountability; political equality among citizens; and representation.
As Gardbaum notes, Democracy and Distrust is “self-consciously parochial” (P. 1) and focuses only on specific failures of American representative democracy—efforts to prevent political change through suppression (of voices or votes) and systematic disadvantage in the political process for disfavored minority groups. But relying on the expanded list of democratic procedural values and taking a comparative lens, Gardbuam identifies many other political process failures. In addition to threats to free and fair elections and to the lawmaking process or processes flagged by Ely, Comparative Political Process Theory (CPPT) directs attention to the “institutional composition of the constitutional system”; the “modes and methods of executive accountability and oversight in between elections”; and “the rules and procedures of the various branches of government.”
This expanded set of process failures is supported by a variety of concrete examples, and Gardbaum draws on his own and others’ work in detailing the dispiriting stories of democracies in crisis: challenges to independent institutions of accountability in South Africa (the National Prosecuting Agency) and to the independence of the judiciary in Hungary, Poland, and Turkey; the “weaponizing” of the legislature in South Africa to protect and insulate President Zuma from political accountability, and Boris Johnson’s decision to prorogue Parliament in the United Kingdom; and the undermining of the process of legislative deliberation by efforts to push through fast-tracked or last-minute bills in the Israeli Knesset (tax) and the U.S. Congress (tax), as well as the wide-ranging legislative gamesmanship in Poland, from agenda manipulation to shifting meeting times and locations.
These failures are not all narrowly procedural; some are “impermissible because of their intended or likely effects on the political marketplace” (P. 35), thus CPPT straddles the procedural/substantive divide. In so doing, its capaciousness has implications for remedies—and the nature of judicial review. Gardbaum is not proposing that CPPT be seen as the only justifiable rationale for judicial review, and he leaves open the questions of whether or why purely substantive judicial review might also be beneficial. Similarly, he does not present CPPT as a theory of judicial restraint; in fact, “it can call for robust interventions where most courts have feared to tread.” (P. 40.) As one example, he highlights South Africa, where robust Constitutional Court review of the procedures in the National Assembly was controversial. By framing these decisions in light of CPPT, they can be understood “less as judicial overreach violating the separation of powers than as judicial protection of it.” (P. 33.)
Indeed, the variation in types of process failure may call for different measures of judicial review, from pure procedural review to semi-procedural review, in which the enactment process of a legislative output “may be relevant in determining [its] substantive constitutionality.” (P. 28.) And in some contexts—such as when it is functioning to “make the process work the way it is supposed to” (P. 39), CPPT will necessarily function as a weak-form theory of review, “as its focus on remedying process failures of various kinds leaves open a broad range of outcomes that the political institutions may legitimately pursue.” (P. 35.) Again, the South African experience gives context: the full story of holding President Zuma to account included an active and independent media and the investigations of the Public Protector, the chief anti-corruption official.
In this article, Gardbaum adds his voice to the academic chorus calling attention to the steady dismantling of the structures and processes of constitutional democracy around the world. His efforts provide theoretical heft and normative justification to the work of constitutional courts that are trying to stem this tide. In this, as he acknowledges, his project dovetails with the work of law-of-democracy scholars, particularly Sam Issacharoff’s Fragile Democracies. That book, published in 2015, looked at the role of constitutional courts in emerging or weakened democracies in Eastern Europe, Africa, and East Asia. But as Gardbaum’s project highlights, we are all fragile democracies now.