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A Blueprint for the Global Microbial Commons

Legal battlegrounds have moved into the genetic realm. From genetically modified seeds to the altered gene sequence for strawberries, to the patent disputes over isolated DNA sequences and data mining of genetic information, and the associated data generated from germplasm. The Supreme Court rejected a farmer’s claim against Monsanto to the right of reusing genetically modified seeds in 2013. Former employees are in a dispute with UC-Davis over the altered gene sequence for strawberries. Gene editing technologies are subject to patents of contested ownership, but soon may be more readily available. Myriad loses some of its patent rights related to the BRCA1 gene and actively now seeks patents in data mining of genetic information. Data, genes, and law are in a predictable but perplexing confluence.

Professor Jerome Reichman is at the forefront of scholarship on this confluence with the publication of “Governing Digitally Integrated Genetic Resources, Data, and Literature: Global Intellectual Property Strategies for a Redesigned Microbial Research Commons,” coauthored with Dr. Paul F. Uhlir of the National Academy of Sciences and Professor Tom Dedeurwaerdere. A humble jot cannot do justice to a 650-page tome, but as far as Things We Like Lots, this book is up there. It should be on the shelf of scholars and policymakers dedicated to genetic research and its legal regulation.

What is most appealing to me is the mix of law, fact, and policy. The authors identify a set of problems, engage with the relevant legal frameworks, and address several overarching policy challenges. Ever since the Supreme Court recognized the patentability of genetically altered organisms in 1980, patentable subject matter has expanded to include genetic materials broadly: gene sequences, methods of medical diagnoses, therapeutic techniques, and genetic testing. Gene patenting has made its mark on a range of practices from university research to medical practice. Congress has been largely inactive in regulating gene patenting although it has addressed some of the potential excesses through food and drug regulation, specifically in the domain of biologics. Courts, on the other hand, have addressed genetic patenting through numerous rulings raising the standard for patentability and proving infringement. These developments have been fruitful in shaping a policy of genetic patenting. But as Reichman and his coauthors show, these efforts are inadequate for two reasons.

First, judicial opinions and legislation are limited to the United States. They may serve as models for other jurisdictions, but they have little impact beyond that. A key problem is the sharing of genetic information across borders. Genetic research is an international phenomenon. Markets for gene therapies and diagnostics are global. A regulatory regime such as a commons has to function transnationally, and this requires treaties and international institutions. Some may argue that the World Trade Organization and the TRIPS Agreement are the desired institutions. But as these authors, as well as myriad other scholars, would point out, TRIPS is too protective of patents and leaves little room for variance across nation states. The Nagoya Protocol, however, provides a more appropriate framework for creating a global commons for genetic research and the sharing of data. Although developed in the context of plant biodiversity and agriculture, the Nagoya Protocol allows reuse of patented materials (for example through the protection of breeders and farmers using seeds), which is a rights regime that allows for sharing of other materials, such as germplasm or gene sequences.

Second, genetic research has changed significantly over the past decade. Initially, researchers were in the fields of biology and chemistry. Genes were chemicals; germplasms, organic matter. With advancements in computer and information technologies, gene research met big data with the laptop replacing the wet lab as the tool for research. Genomics, proteomics, and gene science involve the digitization of organic matter and chemicals. Matter as data allows for deeper analysis, identification of patterns, testing of alterations and mutations for designing more targeted diagnostics, therapies, and pharmaceuticals. The law is only now catching up with this transformation. While there is a jurisprudence on the intellectual property of genetic technologies and one on information and communications technology, scholars are only now examining in depth the merging of these two currents. How do the rules and policies combine especially when the pharma field has often supported protective patent rights and the software field has supported fewer rights. The intersection of genes and data creates a whole new field and new legal regime.

Reichman and his coauthors lay the foundation for this new regime. The book is divided into four parts. The first deals with the international regulation of genetic resources and the assault on scientific research. The second turns to the preservation of the public research function of genetic research after the Nagoya Protocol. The third considers the digitally integrated infrastructure for microbial data and information. Finally, the fourth presents a blueprint for a redesigned microbial research commons.

Two conceptual points stand out from this book; one is about rights, the other is about transactions. The creation of a microbial research commons demands a set of rigid intellectual property rights, which do not create barriers to those who want to use data for their own research purposes. This requires recognizing user protections under both patent and copyright laws. Genetic resources, whether in organic or data form, should be open to the public as naturally occurring substances. Genetic resources that have undergone inventive transformation may get some patent protection, but only enough to provide adequate rewards for the invention. Follow-on use and invention should not be foreclosed. Furthermore, in digital form, genetic resources are data and their arrangement, a database. Copyright law gives no protection to data and thin protection to databases. With digitized genetic materials, copyright and patent protection may exacerbate the problem of access by users. Limitations within these two areas of law, the authors note, should support the research commons as knowledge of gene sequences and their digitization should require more limited intellectual property rights.

Such a system of rights would facilitate the transfer and distribution of genetic materials in its varied forms. Whether as germplasm or as data, researchers, inventors, and users should have access to this information. Those who discover the genetic knowledge and those who transform it into databases, therapies, and diagnostics should not preclude others. Fair use, liability rules for infringement, and other protections will support the commons and the resulting communication and collaboration among research communities. Reichman and his coauthors present a detailed account of the path to the commons and what this ideal could look like in practice.

This book draws on the prior scholarship of the three co-authors. But the synthesis brings together these ideas in a fresh, coherent whole. Researchers, practitioners, and policymakers should read this book. Those interested in where the future of genetic research and big data lies will learn much from this well-written, if hefty, volume. Professor Reichman and his coauthors have opened up a new field for scholars to pursue and contribute to the knowledge commons.

Cite as: Shubha Ghosh, A Blueprint for the Global Microbial Commons, JOTWELL (September 29, 2017) (reviewing Jerome Reichman, Paul F. Uhlir, and Tom Dedeurwaerdere, Governing Digitally Integrated Genetic Resources, Data, and Literature: Global Intellectual Property Strategies for a Redesigned Microbial Research Commons (2016)), https://intl.jotwell.com/a-blueprint-for-the-global-microbial-commons/.

Buddhism, Law and Comparative Law: the (Rebecca) French Connection 

Rebecca R. French, What is Buddhist Law? Opening Ideas, 64 Buffalo L. Rev. 833 (2015), available at SSRN.

Professor Rebecca Redwood French’s What is Buddhist Law? Opening Ideas is a major contribution to the nascent field of Buddhist legal studies and has the potential to advance our thinking about comparative law. In this review, I will highlight the article’s significance to these two areas of study.

Professor French notes that although there is significant writing on the legal dimensions of the Christian, Jewish, Islamic and Hindu religious traditions, little has been written on “legal concepts in the Buddhist tradition.” (P. 834.) Perhaps most significantly for readers of this blog, she points out that although some Buddhism scholars have written on “the Buddhist Law Code … very few have written on it from a legal vantage point.” (P. 834, note 3.) As the author of several important works in the field (including, On Buddhism and Natural Law  8 J. Comp. L. 141 (2013-2014)), as co-editor (with Professor Mark A. Nathan) of the collection entitled Buddhism and Law: An Introduction (2014) and as editor of the journal Buddhism, Law and Society, Professor French has done much to fill this gap.

The introductory chapter to Buddhism and Law: An Introduction provides a terminological distinction that can help orient our discussion. There, Professors French and Nathan contrast “Buddhist Law,” which refers to “monastic law codes,” with “Buddhism and Law,” which “alludes to the secular legal systems of countries that are Buddhist.” (Buddhism and Law, P. 4.) In this review, I subsume within the capacious term “Buddhist legal studies” legal academic writing on monastic legal codes and on the interactions between Buddhism and secular legal systems.

Professor French begins her article by setting out several reasons for developing this field of study. Consider first the reasons for better understanding Buddhist Law. According to Professor French, Buddhism has a detailed legal code and a long legal history that can be traced back to the founder (P. 835), and research by jurists can illuminate this aspect of the tradition. It is also important to study this legal code, Professor French argues, because the concept of law in Buddhism challenges the dominant modern understanding of law. According to her, the Buddhist concept does not focus on artifacts of positive law (“cases, rules, rights, judicial procedures, decisions and sanctions” (P. 835)). Instead, writes Professor French, the concept of law in Buddhism is “uniquely focused on the socialization of the individual to a set of rules that will help him or her operate within a community.” (P. 835.) This process of socialization affects the Buddhist practitioner’s day-to-day behavior, reduces conflict, diminishes the need for legal rules, and facilitates the pursuit of religious practices (meditation) and goals (enlightenment). (Pp. 835-36.)

Professor French adds to these arguments in favor of studying Buddhist Law several that justify scholarly attention to Buddhism and Law. She contends that scholarship on Buddhist cultures has largely ignored the legal texts of the relevant political states. This body of academic writing (which includes Buddhist Studies and Area Studies) has therefore neglected the influence of Buddhism on “the political and legal operations of these states.” (P. 838.) Professor French identifies pragmatic reasons for understanding this influence. She notes that many countries with significant Buddhist populations loom large in international relations and in the commercial and political interests of the United States. (P. 836.) There is, therefore, a strategic interest in understanding how Buddhism shapes the political and legal life of these states.

After identifying these reasons for undertaking Buddhist legal studies, Professor French undertakes a magisterial survey of relevant topics. In Part I of the article, she identifies the origins (Pp. 841-842) and objectives (Pp. 842-845) of Buddhist monastic codes, before distinguishing the relevant concept of Buddhist law from an overbroad definition advanced in the field of Buddhist Studies. The latter definition captures the whole of the Buddha’s teaching, including that which relates to “the nature of the universe, the position of human beings in it, reality, karma, nirvana and all of the other basic ideas of Buddhist philosophy.” (P. 845.) In Part II, Professor French identifies the number and types of Buddhist legal codes, and examines their organization and style. In Part III, she demonstrates that the legal codes do not exhaust the content of legal materials in the Buddhist canon. Professor French demonstrates that the Buddha’s observations on law can be found in “a wide variety of texts, proverbs, stories, sayings and homilies” (P. 866), and that other texts, including temple ordinances, royal proclamations and commentaries on the Buddhist canon also include discussions of legal norms. The article concludes with an overview of Buddhist Law and Buddhism and Law in South and Southeast Asia, East Asia, and North Asia and the Himalayan region.

It follows from the above discussion that Professor French’s article will be a cornerstone in the field of Buddhist legal studies, and is worthy of attention for that reason alone. The article is also important, in my view, because it advances the field of comparative law in three important ways. First, comparative scholarship on legal systems in Buddhist societies is necessarily incomplete if authors do not understand how Buddhism shapes those systems. Professor French’s survey of Buddhism and Law offers promising avenues for examining this influence.

Second, comparative law’s neglect of Buddhist legal codes results, in part, from a tendency in the legal traditions literature to caricature Buddhism. Professor French sees this tendency in the work of my esteemed late colleague, Patrick Glenn. According to Professor Glenn, Buddhism spread “in a non-political, non-institutional way, just telling people about the way of the world and achieving some kind of political consensus only in Tibet.” (P. 849, internal citations omitted.) Professor French’s article is an excellent corrective and a starting point for a more fruitful engagement with the Buddhist legal tradition.

Third, Professor French’s article has the potential to spark productive dialogues among comparative law scholars with a jurisprudential bent. As we have seen above, the concept of law in Buddhism contrasts with, and therefore contests, much of the modern positivist understanding of law. A similar challenge has been posed by some writers on Indigenous legal systems in Canada and elsewhere (see, e.g. John Borrows’ Freedom and Indigenous Constitutionalism). Indeed, in a wide range of contexts scholars are examining practices and concepts of law that do not rely upon the imprimatur of the state for their legitimacy or efficacy. As part of this flourishing body of scholarship, one can foresee productive comparative conversations between Indigenous law scholars and authors building on the firm foundations established by “What is Buddhist Law? Opening Ideas.” I, for one, intend to seek out such exchanges with enthusiasm and I anticipate drawing upon the abundant riches of Professor French’s article for years to come.

Cite as: Hoi Kong, Buddhism, Law and Comparative Law: the (Rebecca) French Connection , JOTWELL (September 6, 2017) (reviewing Rebecca R. French, What is Buddhist Law? Opening Ideas, 64 Buffalo L. Rev. 833 (2015), available at SSRN), https://intl.jotwell.com/buddhism-law-and-comparative-law-the-rebecca-french-connection/.

Private No More: Exposing the Praxis of Comparative Law for What It Is

I liked Privacy Revisited, not the least because Ronald Krotoszynski’s book – both explicitly and implicitly – lays bare and grapples with comparative law’s thorniest methodological problems. It is inspiring to see a colleague struggling so honestly and openly with these issues.

This might sound like curious praise. After all, this is a book about privacy law in a variety of jurisdictions and I have not said that what I most appreciate about Privacy Revisited is its masterful treatment of that confounding subject.  The reason for this is that Krotoszynski’s sweeping survey of privacy law in the United States, Canada, South Africa, the United Kingdom, and the European Court of Human Rights is as knotty as the subject itself.

For example, Krotoszynski chooses to largely frame the concept of privacy through its intersection with free speech rights – and not on independent theoretical terms. Privacy’s intersection with other liberties is an important facet of any broad engagement with privacy rights. And Krotoszynski’s book largely convinces me that the privacy-free speech constellation is a more-or-less universal problem for privacy law. (P. 183-84.) But the weight Krotoszynski gives this particular conflict expresses, at the book’s foundation, distinctly American values and priorities when it comes to thinking about privacy. Yet, Krotoszynski mostly requires the privacy regimes of the other jurisdictions in his study to portray their distinct approaches to privacy through that particular lens. What is more, Krotoszynski’s heightened interest in the conflict between privacy and freedom of speech – a conflict he ultimately resolves by fashioning the two liberty interests as the twin pillars of effective and just contemporary democracies – places him at some distance from the privacy concerns relevant to today’s IT-saturated, big-data age. (P. 181-83) I have argued1 that privacy advocates are ever-less concerned with the harmful publication of private information (and the resulting conflict with free speech rights) but are instead increasingly convinced that privacy interests are implicated merely when the state or private firms collect deeply revealing information about us – even in the absence of evidence that they have used that information to our detriment. Wholly independent of its use in a protected speech act (thereby setting up the clash that preoccupies Krotoszynski), privacy has shifted towards the concerns often associated with the “chilling effect” that results from the mere collection of personally-identifying information. In this paradigm privacy takes the form of protecting us from the collection of our personally-identifying information in the first place – not matter the use to which it is ultimately put. Are privacy rights and speech rights decoupling in ways that Krotoszynski’s study doesn’t consider?

The book’s emphasis on secretum sermonem cum nonetheless produces a rich but eclectic treatment of privacy law across five jurisdictions. The chapter on the United States treats quite a lot of the Supreme Court’s First Amendment cases with only passing references to the Fourth Amendment and Substantive Due Process. The chapter on Canada fuses privacy and human dignity into a single concept. The relationship – theoretical and practical – between these distinct bases for expressing human liberty is not fully resolved. This viewpoint carries over to the chapter on South Africa in which Krotoszynski mostly substitutes the Constitutional Court’s jurisprudence dealing with “dignity, equality, and freedom” for its more specific privacy jurisprudence. The chapter on the United Kingdom is an immensely insightful treatment of the nature of judicial power in English law, a survey made necessary by the apparent dearth of English privacy law, which the judiciary has been loath to champion. The chapter on the privacy jurisprudence of the European Court of Human Rights serves primarily as a vehicle for pointing out a surprising degree of consensus between the United States and Europe on the issue of privacy. This is the book’s most systematic and convincingly delivered chapter, but is it a direct critique of James Q. Whitman’s celebrated divergence thesis? Krotoszynski does not say.

The book’s diversified consideration of privacy leads me to what I view to be its greatest merit. I loved the book because it is such a smart and dynamic engagement with comparative law’s current malaise.2

It turns out that it is really hard to get a socio-legal construct – such as privacy – to hew coherently to a single conceptual framework when working across a number of different jurisdictions and societies. As I have written elsewhere: “There is no privacy. There are only privacies.”3 Krotoszynski agrees:

[W]e should reject totalizing and universalist ‘institutionist’ claims about privacy as both a legal and cultural phenomenon. Privacy law differs among and between legal systems because privacy, perhaps more so than most areas of law, invariable reflect very local cultural understandings, traditions, and beliefs. (P.183-84.)

And with that problem exposed, Krotoszynski thrusts us directly into one of the discipline’s most stubborn questions. Should comparatists pursue deep analyses of the law in its context in relatively few jurisdictions? Or should we fly above the clouds with the functionalists? Krotoszynski wants to know. He agonizes over this damnable choice. And heroically (or is it desperation) he does both.

On one hand, he tells us that the different terminology about privacy used in different jurisdictions “reflects deep socio-jurisprudential commitments, not mere accidents of legal drafting” and that the concept of privacy “retains tremendous cultural, legal, and political salience.” (P. 11.) In recognition of this fact Krotoszynski devotes the opening sections of each chapter to an admirable consideration of some facet of the context of privacy rights in each jurisdiction. It is a revelation, for example, that he urged us to see that privacy rights in the United States are conditioned by a “general distrust of government and government institutions.” (P. 22-29.) It is equally illuminating that he urged us to understand that privacy rights in South Africa are conditioned by the post-Apartheid system’s desire to “differentiate South Africa’s exclusionary past from its inclusive present (and, hopefully, future).” (P. 111.) And it is productively insightful that he urged us to see that the absence of a general privacy right in the United Kingdom is a product of English legal culture and the distinctly “limited sphere for judicial policymaking” it tolerates. (P. 135.) There is this and much, much more of what comparative lawyers call “contextualism” in Krotoszynski’s book.

On the other hand, he does not turn away from the functionalist ambition of using his comparative law survey to point toward a “comprehensive and effective transnational understanding of privacy.” (P. 3.) Krotoszynski claims to see striking transnational “consistency” if not the open pursuit of “convergence” in the Supreme Court of Canada’s privacy jurisprudence, which seems to “borrow freely” from German and European Human Rights law. (P. 70.) True to functionalist form, Krotoszynski argues that the convergence of global markets and increased international interaction will facilitate and, ultimately, require the emergence of a transnational consensus concerning privacy.

I genuinely admire Krotoszynski for this effort. In this wide-ranging work we see the challenges, shortcomings, and promise of these competing approaches to comparative law. Who among us hasn’t struggled with this, the comparatist’s fundamental dilemma? Too few of us are willing to live that struggle so openly and honestly as Krotoszynski. He has given us a compelling invitation to keep hammering away at that methodological and theoretical problem. Whatever we might mean by privacy, Krotoszynski isn’t going to let us mask our disciplinary challenges. I like that. I like that a lot.

  1. Russell A. Miller, A Pantomime of Privacy: Terror and Investigative Powers in German Constitutional Law, Wash. & Lee Pub. Legal Research Paper Series No. 2017-5 (2017), available at SSRN). []
  2. Mathias M. Siems, The End of Comparative Law, 2 Journal of Comparative Law 133 (2007). []
  3. Russell A. Miller, Introduction – Privacy and Power: A Transatlantic Dialogue in the Shadow of the NSA-Affair, in Privacy and Power 1, 4 (Russell A. Miller ed., 2016). []
Cite as: Russell Miller, Private No More: Exposing the Praxis of Comparative Law for What It Is, JOTWELL (July 21, 2017) (reviewing Ronald J. Krotoszynski, Jr., Privacy Revisited: A Global Perspective on the Right to Be Left Alone (2016)), https://intl.jotwell.com/private-no-more-exposing-the-praxis-of-comparative-law-for-what-it-is/.

Developing a Matrix for Intellectual Property as Subject of International Law

Intellectual property disputes implicating diverse and seemingly unrelated international legal regimes have become more frequent, acrimonious, and high-stakes. This trend has spawned an enormous academic literature endeavoring to rationalize the approach various interpretive authorities take to intellectual property disputes. Graeme Austin and Larry Helfer’s Human Rights and Intellectual Property offered a framework by which to resolve claims for or against intellectual property protection based on human rights arguments; Susy Frankel has extensively assessed the application of customary international rules of interpretation in furtherance of a rationalizing approach to complex IP conflicts; and Jerry Reichman, Paul Uhlir, and Tom Dedeurwaerdere have developed comprehensive approaches to questions arising at the intersection of international research efforts and potential IP-related obstacles. Edited volumes by Margo Bagley and Ruth OkedijiCarlos Correa and Xuan LiDaniel GervaisShubha Ghosh and Robin Paul MalloyChristopher May and Susan Sell, and Peter Yu similarly provide useful and targeted analyses of discrete IP-areas (e.g. patent and copyright) to particular contexts (e.g. development, disability, and innovation). The aforementioned works are by no means exhaustive but it is fair to say that none attempts to undertake the quite complex, more comprehensive question of intellectual property law as a fragmented part of the broader international legal order.

Enter Henning Grosse Ruse-Khan’s The Protection of Intellectual Property in International Law. Ruse-Khan, University Lecturer and Fellow at King’s College, Cambridge applies the broader theoretical elaboration of international law’s fragmentation to intellectual property disputes so as to provide a more comprehensive approach to issues raised by intellectual property’s overlap with discordant international legal regimes other scholars have tackled through narrower lenses. (P. 4.) This book is one I like a lot, and I hope others active in the study and shaping of international intellectual property law do as well. Intellectual property, Ruse-Khan reminds us, was a forerunner of the kind of fragmentation more systematically analyzed by the International Law Commission after 2006: “IP is . . . addressed, from diverse perspec­tives, in the United Nations Organization for Education, Science and Culture and the Food and Agriculture Organization of the United Nations as well as in the context of the Convention on Biological Diversity and the World Health Organization” even before trade and investment started playing their inevitably influential role. (P. 8.)

Ruse-Khan’s book is particularly timely in light of a recent spate of international intellectual property disputes. Last year, an arbitration panel issued a decision rejecting Philip Morris International’s claim against Uruguay for adopting tobacco packaging regulations that stripped its ability to use its trademarks to market more than one variety per brand family and required 80% of cigarette packages (along with their distinguishing logos and images) to be covered with graphic warnings. That dispute followed others involving pharmaceutical firms pitted against Brazil, India, and South Africa in both national and international dispute resolution fora, governments claiming insufficient levels of intellectual property protection and enforcement against one another; and, all around, new bilateral and multilateral agreements steepening international law’s influence into domestic intellectual property protection regimes. While multifaceted, these disputes may be particularly complex because they require application of rules drawn from ostensibly distinct and self-contained international legal regimes. The PMI-Uruguay panel, for example, used the World Health Organization’s Framework Convention on Tobacco Control as part of its analysis of a dispute that originated in a bilateral investment agreement between Switzerland and Uruguay.

In Chapter 3 of the book, the heart of Ruse-Khan’s contribution, he provides a framework for evaluating these high-profile disputes. There he argues that cohesive approaches to intellectual property disputes can be logically ordered from the systems analysis he provides in Chapter 2: “technical– legal tools can derive from the rules or rule- systems whose relationship is to be determined” so that many disputes will implicate specific provisions of applicable law “(eg a Berne Convention rule that regulates the possibility of inter- se agreements such as the WIPO Copyright Treaty . . . or a CBD norm that is made subject to the interna­tional rules on the protection of IP).” (Pp. 31-33.)  Where “alternative” or “other” systems bear upon IP disputes, more broadly applicable rules of international law like the Vienna Convention on the Law of Treaties’ bias in favor of harmonization or the WTO Appellate Body’s approach to defining conflict can effectively order the rules adopted from outside lex specialis circumstances i.e. where applicable treaties or rules do not by their terms resolve IP disputes.

Indeed, as another reviewer has noted, Ruse-Khan’s contribution might be better understood as a systematic analysis of conflict-of-law and conflict-of-norms principles developed and then applied to the subject of intellectual property under various, sometimes competing, international legal regimes. It is not clear, for example, that even applying the useful framework he invents (as he does in Chapters 4-12) results in the “protection” of intellectual property.  Yet what does result is a rational approach by which stakeholders, interpreters, and arbiters may manage – with cohesion and legitimacy –  the increasing number and severity of international disputes over intellectual property.  As those disputes continue to invite application of rule-systems not contemplated by their conscientious designers nor their passive interpreters, Ruse-Khan’s analysis will provide a premier and precise tool.

Cite as: Sam F. Halabi, Developing a Matrix for Intellectual Property as Subject of International Law, JOTWELL (June 27, 2017) (reviewing Henning Grosse Ruse-Khan, The Protection of Intellectual Property in International Law (2016)), https://intl.jotwell.com/developing-a-matrix-for-intellectual-property-as-subject-of-international-law/.

An Imperial Court in a Post-Colonial Context

In this age of Brexit and the existential threats facing the United Kingdom, I find myself drawn to literature addressing the legacy of the British Empire. And in their new article, Constitutional Comparisons by A Supranational Court in Flux: The Privy Council And Caribbean Bills of Rights, Tracy Robinson and Arif Bulkan analyze a vestigial British imperial court, the Judicial Committee of the Privy Council (JCPC), in a post-colonial context. Law professors at the University of the West Indies, the authors examine the JCPC’s approach to constitutional interpretation through detailed analysis of its cases addressing Caribbean bills of rights. The article succeeds in highlighting significant questions about the JCPC’s legitimacy and function and provides insight into the very serious challenges presented by judging from a distance in a changing jurisdictional landscape.

The Judicial Committee of the Privy Council is a relic of the British colonial empire. During the imperial period, it evolved into the final court of appeal for roughly one quarter of the world’s population. Now, it hears appeals from a tiny number of former colonies, current UK territories, and Crown dependencies. The Anglophone Caribbean is at the core of the JCPC’s workload: In addition to the six overseas territories in the region, eight of the twelve independent Caribbean states send appeals to the JCPC, having retained its services following decolonization. Yet, rather than acting as an individualized apex court to the numerous intermediate courts over which it has jurisdiction, the JCPC instead has developed into a transnational or supranational court; its binding precedent can be applied across national jurisdictions. Of the 500 or so “Privy Counsellors” (the British cabinet members, politicians, clergymen, etc.) that advise the Monarch as members of the Privy Council, the Judicial Committee is staffed by a judicial subset comprising justices of the UK Supreme Court as well as judges of the various courts of appeal in England and Wales, Scotland, and Northern Ireland. Judges from some Commonwealth countries are eligible to sit on the JCPC, but only a few Caribbean judges have been appointed as Privy Counsellors, and those who were appointed were rarely empaneled on JCPC Boards (the groups of three or five judges that hear cases).

As one can easily surmise from this snapshot description, questions about the legitimacy of this distant and disconnected court were bound to arise, and Robinson and Bulkan’s work certainly refreshes those concerns. But rather than engaging in theoretical discussions of independence and accountability, the authors provide a nuanced and fine-grained analysis of the JCPC by looking closely at its output. In detailing the process and content of judicial decision-making through case analysis, they demonstrate the JCPC’s penchant for judicial shortcuts and a “lassitude” (p. 411) that calls into question the court’s effectiveness. (Although they do not make any prescriptive suggestions, it is clear that they are skeptical about the future of the JCPC.)

The authors focus on the JCPC’s interpretation of Caribbean bills of rights—in particular, the role of the prefatory or introductory section to the bills of rights in many post-colonial constitutions. In these charters, a broadly written opening that guarantees many rights often is followed by more detailed provisions protecting specific aspects of those rights or allowing for certain exceptions. In addition, some constitutions include a redress clause, giving individuals the right to apply to court to remedy rights violations. These redress clauses vary in whether they expressly exclude or include violations of the rights referenced in the broad introductory section.

In evaluating the justiciability or the content of an introductory section to a constitution’s bill of rights, the JCPC looks to other bills of rights—comparing constitutions to derive meaning. The court relies on this comparative enterprise in lieu of other types of constitutional interpretation, such as reading the introductory section in light of other textual material within the same constitution. By comparing and classifying constitutions, the JCPC has systematized its approach to interpretation.

This shortcut comes at a cost, particularly when observed against the backdrop of the JCPC’s shrinking jurisdiction. For example, the authors describe how a category-creating precedent derived from one constitutional regime maintains its bite in other national contexts—even when the original regime is no longer subject to JCPC review and thus the precedent can never be revisited. This “fossilization of constitutional understandings” (p. 395) directly affects (and appears to stifle) the power and relevance of various rights provisions. In addition, the JCPC’s comparative endeavor has little methodological rigor, leading to obvious selection bias. And, most damning, the authors ultimately conclude that the systemization “reduces how much a judge needs to know to function” (p. 383), suggesting a certain judicial weariness with the entire endeavor.

The JCPC’s approach may make some pragmatic sense given that many of these “decolonization constitutions” were negotiated documents between colonial governments and the British government. But, as the authors point out, the constitutions’ legitimacy therefore derives “less from their founding and more from their stability and interpretation over time” (p. 388). And the JCPC’s comparative approach can undermine the vibrancy of the constitutional rights provisions. For example, in a case from Barbados, Boyce v. R. [2004] UKPC 32, the JCPC’s decision to evaluate “an older Caribbean bill of rights [Barbados’ 1966 Constitution] in light of newer ones inevitably generated a very restrictive interpretation of the former” (p. 391).

This article focuses welcome and deserved attention on a court and a region that are underrepresented in the comparative literature. The authors’ broader contribution comes through their careful attention to the court’s decisions: Robinson and Bulkan raise serious questions about the trade-off between judicial economy and judicial proficiency at the JCPC—a delicate calculation that is relevant to all courts.

Cite as: Erin F. Delaney, An Imperial Court in a Post-Colonial Context, JOTWELL (May 30, 2017) (reviewing Tracy Robinson & Arif Bulkan, Constitutional Comparisons by A Supranational Court in Flux: The Privy Council And Caribbean Bills of Rights, 80 Modern L. Rev. 379 (2017)), https://intl.jotwell.com/an-imperial-court-in-a-post-colonial-context/.

Dynamic Democratic Dialogue

In recent years, the cornucopia of academic commentary on dialogic constitutionalism (or cognate terms like democratic dialogue) has been one of the richest and most creative in constitutional theory and comparative constitutional law. The debate has benefited from celebrated contributions from some of the world’s best-known constitutional thinkers, as much as from fresh thinking by younger scholars. The current debate began as a response to the institutional innovation, and later as a theoretical discourse, within some Commonwealth countries that adopted parliamentary bills of rights, although arguably the embryo of the model has an older pedigree in the Commonwealth tradition (e.g., the “manner and form” provisions of s.5 of the Government of Ireland Act 1920 or s.29 of the Ceylon (Constitution) Order in Council 1946). The development of the dialogic model has since also engaged distinctive practical challenges of different global regions, from North and South America, to Europe, Africa, and Asia. Within its broad rubric therefore it has not only embraced both common law and civilian systems as well as the developed and developing worlds, but also found diverse theoretical articulations serving a wide range of quite different constitutional challenges and contexts. Professor Alison L. Young’s recent book, Democratic Dialogue and the Constitution, is the latest and one of the most rigorous contributions to this already highly sophisticated debate over dialogic constitutionalism.

For those for whom at least the more extreme claims of the two counterposed models of legal and political constitutionalism hold little attraction and practical utility, dialogic constitutionalism has an almost intuitive appeal as a modus vivendi. In forcing institutional parity and dialogue between the judiciary and the political branches—rather than the supremacy of one or the other—it seems to both meet the requirements of representative democracy and the protection of normative principles, when societies are confronted with legitimate and reasonable but deep disagreements over matters of constitutional significance. It empowers the judiciary adequately to make authoritative statements about the scope of constitutional rights, while simultaneously maintaining the role of legislatures as forums of democratic deliberation and decision-making. The dialogic model also enhances the scrutiny of elected executives, by demanding equal emphasis on parliamentary as well as judicial forms of accountability. In eschewing strong-form judicial review, it addresses the democratic deficit of legal constitutionalism (the counter-majoritarian difficulty), and in abjuring the untrammelled parliamentary supremacy of political constitutionalism, it accommodates liberalism’s counter-majoritarian principles in the protection of individuals and minorities. In short, it sets to work the ideal institutional model for the principled negotiation of constitutional disputes in democracies, whether over rights or questions of a more general nature.

Even though some of the initial excitement with the novelty of the model has receded with the realisation of its limitations over time, it continues to exert a powerful appeal on constitutional theorists and designers. This is so for a number of reasons, of which perhaps the most obvious is that dialogic constitutionalism allows us an escape from some of the more otiose abstract debates over the normative superiority of legal or political models, through an alternative model of constitutionalism that is not merely convenient but also highly normatively defensible.

But especially in the developing world and the international practice of post-conflict or post-authoritarian constitution-making since the end of the Cold War, after a lengthy period of doctrinal dominance of a very strong-form model of legal constitutionalism—and then increasing anguish over its many failures in application—democratic dialogue offers fresh avenues of thinking for constitutional design. Liberal legal constitutionalism’s underestimation of the power of local histories, politics, and cultures, explains at least in part the many miscarriages of radical attempted constitutional transfigurations in non-Western societies. The less prescriptive and more flexible model of dialogic constitutionalism, by giving equal attention to the political as to the legal, has the potential to better serve these societies by articulating a coherent theory which can inform rights protection and democratic deliberation, checks and balances, and help resolve the often-elusive question of the appropriate balance between constitutional rigidity and flexibility.

And at least for some who are skeptical of the aptness, and fearful of the consequences, of revolutionary constitutional transitions, the sense of balance, restraint, proportion, and deliberation that is implied by a dialogic mode of constitutional decision-making points to the great first-order virtue of constitutional politics that Edmund Burke, following Cicero’s idea of artifices officiorum, classically enunciated as ‘prudence.’ To simplify, the Burkean notion of prudence is essentially that constitutional questions are not only about legal principles, rights and duties, but equally importantly about political considerations of peace and order, and indeed contextually about the historical and cultural ethos of a society. In addressing the relation between (legal) idealism and (political) realism, Burke’s thought retains its crispness today because any sensible methodology of contemporary constitutional theorising must surely be equally and simultaneously attentive to both abstract norms as well as practical realities. By bringing the three branches of the state into dialogue rather than defiance, dialogic constitutionalism seems to promote prudence in defining, structuring, disciplining, and ultimately reconciling the relationship between law and politics.

Alison Young’s Democratic Dialogue and the Constitution begins with a deconstruction of some of the idler assumptions that serve the current debate, exposing the conceptual instability of existing theorizations of dialogic as well as legal and political models of constitutionalism. The central problem here is that it has become necessary to over-determine the distinction between legal and political models, so as to make space for the dialogic model in between. Her analysis demonstrates how this “runs the risk of either providing an artificial divide between extreme forms of legal and political constitutionalism, leaving a middle ground for democratic dialogue, or pushing all accounts of constitutionalism into the middle ground, subsumed into accounts of democratic dialogue.” (P. 32.) This suggests that “democratic dialogue is either ubiquitous or non-existent.” (P. 30.) The explanation for this, Young argues, is that we see the distinction between legal and political models as one of control: we seek to categorize a constitutional system as belonging to one or other model by looking to whether legal-judicial or political-legislative controls have the final say on constitutional issues.

Young rejects this misleading approach, asking instead the question whether dialogue is different because of its dynamic rather than static nature. That is, dialogue is distinctive because it draws upon the foundational assumptions and values of the other two models in a dynamic way, but accords either set of values an equal importance and neither a relative superiority. The critical distinguishing feature of the theory of democratic dialogue Young offers is that its starting premise is not control but institutional interaction. Assuming that institutional interaction rather than conflict is better able to protect both rights and democracy, Young’s account demonstrates how dialogue can draw on both legal and political models in determining when the relative power of the different values ought to prevail when institutions interact.

In establishing the advantages of democratic dialogue, Young elaborates two forms of ‘inter-institutional interactions’: ‘constitutional counter-balancing’ (guaranteeing roles for both judiciary and legislature in the settlement of constitutional issues while ensuring no override for either) and ‘constitutional collaboration’ (incentivizing judicial and legislative institutions to work together by drawing on their intrinsic strengths and weaknesses). The central merit of dialogic constitutional design is that constitutional counter-balancing facilitates constitutional collaboration between courts and parliaments, thus maximizing both rights-protection and democracy.

Perhaps the book’s forte is that it goes beyond the protection of constitutional rights (which has tended to dominate the existing literature) to discuss democratic dialogue as a general model of constitutionalism that serves such ends as participatory and deliberative democracy, checks and balances, and stability and evolution, providing as it does so an elaborate normative framework for democratic dialogue. Beyond the UK and European contexts that are then discussed in the last chapters of the book, it succeeds admirably – and with an impressive display of theoretical and empirical scholarship – in establishing democratic dialogue as: “a particular form of constitutional design; as a distinct method of protecting human rights; a theory which advocates a particular way in which institutions should exercise their powers when determining rights-issues; and as a means of providing an accurate description of constitutional reality.” (Pp. 33-34.)

Alison Young’s views are the product of many years of research, reflection, and writing on the major issues of constitutional theory and comparative constitutional law that are tackled in great length, depth, and texture in this book. Despite the clarity of her exposition, it is a work of huge complexity and nuance, which promises to reward a more unhurried reading than was the basis for this brief initial assessment. There is little doubt it will generate much erudite commentary in the future. It would certainly be too early to characterize the book as a culmination of her work, but this latest iteration is an extremely persuasive exposition of a very refined theory of democratic dialogue as a general and heuristic model of constitutionalism. As such it would likely become a much-cited and influential work, especially as the UK enters a period of major constitutional change if not upheaval surrounding Brexit. It remains to be seen, however, whether constitution-makers in the world beyond the West would have the imagination to engage with her important insights, and indeed, the mettle to jettison the depleted constitutional technology from the 1990s to which many are still wedded.

Cite as: Asanga Welikala, Dynamic Democratic Dialogue, JOTWELL (April 5, 2017) (reviewing Alison L. Young, Democratic Dialogue and the Constitution (2017)), https://intl.jotwell.com/dynamic-democratic-dialogue/.

Justice Breyer’s Radically Pragmatic approach to Transnational Law

Justice Stephen Breyer, The Court and the World (2016).

Justice Stephen Breyer’s The Court and the World (also the basis of his Jorde lecture) [hereinafter TCW] is an important book. Every legal scholar should read it, because it makes the case, clearly and compellingly, that international, comparative and transnational law are increasingly central to the fabric of American legal practice.

At the heart of TCW are two central concepts: “foreign” and “interdependence.” The basic argument of the book, illustrated through many examples, is the claim that the “foreign” is of increasing relevance to the Supreme Court because of the increasing “interdependence” of the United States to other jurisdictions. I want to suggest that TCW sets out two different accounts of what foreign and interdependence are, and hence, two distinct senses of how they are interrelated.

On one account, what is increasingly foreign about the Court’s docket is that brings before the Court foreign persons, activities, and commerce. (P. 3.) Cases that have one or more foreign dimensions fall within the jurisdiction of American law and institutions, and increasingly generate cases that come before the federal judiciary, up to and including the Supreme Court, because the United States finds itself a world that is growing ever more interdependent, “a world of instant communications and commerce, and shared problems of … security, the environment, health, and trade, all of which ever more pervasively link individuals without regard to national boundaries.” (P. 4.)

For Justice Breyer, this first account of the relationship, between cases with a foreign element generated by patterns of growing policy interdependence, has implications for the American judicial mindset and American legal practice. In the most abstract terms, he states, “the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad.” (P. 81.) But as his careful and thoughtful discussions of antitrust law and copyright law illustrate, in order to resolve these cases, the Court has to go much further that simply demonstrate and deploy comparative awareness and literacy. Rather, it has to subtly reorient itself to federal statutes, some of the legal material at the very core of the American constitutional order.

TCW argues that the Supreme Court must marshal the intricate details of foreign law, foreign regulatory practices, and the foreign economic policies that underpin both, in the service of a theory of statutory interpretation that “must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web.” (P. 91.) Historically, federal courts considered themselves under the relatively weak but important interpretive obligation “to ensure that domestic and foreign laws did not impose contradictory duties upon the same individuals.” (P. 92.) But through a series of fascinating examples, Justice Breyer demonstrates how the Court “has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.” (P. 92.)

There is a radical pragmatism to this idea, in a way that is fitting for Justice Breyer. It is pragmatic because what motivates this interpretive orientation is a desire to ensure the effectiveness of the American regulatory state in an increasingly interconnected world. The effectiveness of American regulatory authorities is highly dependent on coordination and cooperation with foreign counterparts, which has concrete implications for very specific legal issues that come before the federal courts every day. What Justice Breyer proposes, in essence, is to renovate older doctrines of comity, by developing new bridges to historically distinct doctrines of administrative law that counsel deference to regulatory expertise. The twist is that the scope of deference to administrators is broadened beyond the expertise of American regulators to deference to foreign regulators with whom American authorities cooperate every day, based on the cues provided by executive branch institutions. One way of framing this legal innovation is to say that Justice Breyer brings administrative law into international law, through the cross-cutting theme of executive deference.

But in other ways, what TCW proposes is more radical. Although there are sometimes textual anchors that permit, invite, and even counsel such an approach to the interpretation of federal statutes, what Justice Breyer proposes is not rooted in the contingencies of legislative drafting. Rather, it is a non-textual canon of statutory interpretation, which emerges from the Court’s evolving understanding of the rise of networked governance, in a manner akin to how an earlier Court modernized American public law in the wake of the New Deal and the rise of federal agencies – a prior experience that Justice Breyer discusses as well. Moreover, although the regulatory networks that motivate a new doctrine of international administrative deference are built around executive institutions, it is but a small step to imagine federal courts, including the Supreme Court, as being a node in an international network of high courts that together enforce a transnational regulatory machinery in partnership with expert agencies. And so what might be thought of as commercial or private law, beyond the interest and expertise of most public law scholars, raises deep and profound constitutional questions about the roots, scope and even the very self-identity of the American legal order. Scholars of American public law will find the answers to these questions in very unfamiliar places that they ignore at their peril—in the jurisprudence of investor-state disputes arising under Bilateral Investment Treaties, in the theory and practice international commercial arbitration, and in the law of international trade.

Now let me turn to the second account of the relationship between the foreign and interdependence in TCW. Over the past decade and a half, debates over the foreign engagement of the Supreme Court have turned on the use of foreign law in constitutional interpretation, an umbrella term that unhelpfully runs together international and comparative law. This has been a polarizing debate that tracks familiar ideological divisions on the Court, and has been centered in a strand of Eighth Amendment death penalty cases and in the jurisprudence on same sex rights. Justices Kennedy and Breyer have engaged with foreign legal materials in arguing for expanding the scope of the relevant rights. It is a fairly sterile and deadlocked debate, and I was relieved to see that TCW devotes very little attention to it.

But at a more abstract level, the debate is important because what is at stake is the importance of foreign ideas and intellectual interdependence. The Supreme Court is increasingly part of a global community of high courts that face roughly comparable issues. TCW is important because it is an intervention in, and moves forward, important intellectual debates on how to imagine and understand the circumstances under which courts should engage with foreign legal sources as a source of persuasive, but not binding, authority. It also helpfully shifts the focus away from their current preoccupation with the scope of constitutional rights to questions of constitutional structure.

The point of entry for Justice Breyer is the Treaty Power. The Constitution grants the President the authority to make treaties, with the advice and consent of the Senate. Through the Supremacy Clause, treaties so made are the supreme law of the land. The key constitutional questions are how to reconcile the existence of this power with the legislative power of Congress, and rights-based constitutional limits on all exercises of public power. What energizes these old questions is the change in the contemporary character of treaty making, which increasingly encompasses the creation of international organizations that engage in rule-making in a large and growing number of areas, ranging over environmental law, financial services and banking, cyber-governance, energy, intellectual property, labor law, counter-terrorism, navigation, and sports in addition to better known fields, such as human rights and international trade. These organizations are often highly institutionalized, and exercise law-making, law-interpretation, and law enforcement functions historically associated with nation-states.

One of the great constitutional questions of the 21st century will be how the American constitutional order comes to terms with the thickening reality of global law. The initial signs are not promising. America has one of the oldest and most continuous constitutional traditions in the world, and introduced many innovations into constitutional design, such as written constitutionalism, federalism, and the combination of judicial review and constitutional supremacy to yield judicial supremacy. But in the handful of cases where the Supreme Court has had some initial encounters with these issues, regrettably, from a comparative perspective, it has not adopted a particularly sophisticated or nuanced approach to these issues.

Justice Breyer’s point is that the doctrinal framework surrounding the treaty power has not yet reached the substantive issues of legislative delegation and rights that really at the heart of genuine, good faith misgivings about the rise of international regulatory authority. One of the great strengths of TCW is that it takes these concerns seriously in a way that disentangles them from the kind of polarized politics that often surround these issues – with liberal justices more willing to provide a legal basis for cooperation with international institutions, and conservative justices much less so – by directing American readers to the extensive experience of European constitutional courts in addressing these questions, where civil liberties and democratic concerns have underpinned resistance to supranational law.

For over four decades, every major constitutional court in Europe has wrestled with what is, in essence, the flip side of the merger of international and administrative law, in the context of the European Union. In a nutshell, deference to international regulatory cooperation mediated by national executives is subject to constitutional boundaries. These courts have done so in a broad variety of cases ranging from counter-terrorism to data privacy, arrest warrants, and quantitative easing. There is a very complex set of responses for how different constitutional courts have addressed this issue. On rights, for example, some courts have asserted the power to review the decisions of international authorities on the basis of national bills of rights. Others have agreed to defer to international organizations if they have norms of rights protection substantially comparable, but not necessarily identical, to national constitutional protections. Yet another approach has been for national courts to interpret the treaties that empower international organizations to assess if they have acted in excess of their authority. Some courts, most notably the German Constitutional Court, have set outer boundaries to the delegation of national legislative authority to international organizations. Justice Breyer’s point is not that American courts should follow one or more of these approaches. Rather, he argues that the benefit of intellectual engagement with foreign constitutional ideas is to learn from them, to help imagine how American courts might think about the evolution of American constitutional doctrine as they wrestle with the same issues. Comparative reflection is a tool and stimulus for reflection, to produce a response that is appropriate for the American constitutional system. I could not agree more.

In conclusion, I hope that TCW sparks a much needed and overdue conversation in the American legal academy. TCW is a call for legal educators to reflect deeply on how American law schools should equip our students to adapt and thrive in this rapidly changing world.

Cite as: Sujit Choudhry, Justice Breyer’s Radically Pragmatic approach to Transnational Law, JOTWELL (February 1, 2017) (reviewing Justice Stephen Breyer, The Court and the World (2016)), https://intl.jotwell.com/justice-breyers-radically-pragmatic-approach-to-transnational-law/.

Business Lobbying Goes Global

Melissa J. Durkee, Astroturf Activism, 69 Stanford L. Rev. (forthcoming 2017), available at SSRN.

Citizens for Sensible Control of Acid Rain. Consumers for World Trade. The American Forest and Paper Association. The Turkish Confederation of Businessmen and Industrialists. These are a few of the 4600 organizations that are formal, registered consultants to the United Nation’s Economic and Social Council. They are also examples of the mode of corporate access to international lawmaking that is the subject of Melissa J. Durkee’s excellent article, Astroturf Activism.

At the heart of Astroturf Activism is a nuanced description of institutionalized corporate participation in international lawmaking. It takes readers behind the curtain at the United Nations to examine a system of registering non-governmental organizations (NGOs) as consultants with a special advisory role. The article’s pithy title captures a central concern: that businesses lobby international lawmakers through “’astroturf’ imitations of grassroots organizations,” using “nonprofit NGOs as front groups to advance business interests through the U.N. consultancy system.” Despite the title, however, the author resists simple identification of NGOs as the good guys and business as the bad. She suggests here and in other work that business participation can sometimes be beneficial, lending expertise or breaking “geopolitical logjams.”

The article convincingly challenges the idea that NGOs are all classic public interest organizations. It reacts in part to a literature that has praised the NGO as a democratizing force, lumping all non-state organizations together. In illustration, the article quotes a former UN Secretary-General, who praised the rise of NGO consultants as “global people-power.” Drawing on a mix of materials, including the UN Economic and Social Council’s own library of resources, the author elaborates a more complicated category that includes trade groups and business-controlled NGOs.

Cynics may nod along knowingly, unsurprised to hear that the “Citizens for Sensible Control of Acid Rain” NGO was formed by coal and electricity companies. But even cynics will find this article worthwhile. It analyzes institutionalized participation in international law making. This is not just lobbying, but rather a formal legal structure that permits and even encourages lobbying. Moreover, this is not just lobbying, but rather a formal legal structure that incentives hidden participation and fails to leverage positive participation by business.

The article also convincingly argues that the formal access rules are obsolete.  They originate in a period when few businesses operated across national boundaries. The article persuades us that the rules have not caught up with the rapid growth of global business. In particular, they do not account for multinational business entities, which have the ability and desire to influence lawmaking on a global scale.

The nuance of this project is also its challenge. Because it does not altogether condemn business participation, pinpointing the problem with the current system can be difficult. Does its harm lie in the content of the resulting law? Is the lack of transparency a problem in itself? How non-transparent is this system? Does the Council really think that Citizens for Sensible Control of Acid Rain is a grassroots organization? At what point do the business donations—on which NGOs rely—turn them from the natural green stuff into astroturf? The difficulty of articulating the problem also carries over to potential solutions. The article briefly sketches two approaches, increased disclosure and direct access for individual businesses, but wisely treats them as signals of future work to be done.

These open questions do not detract from the article’s many strengths. Indeed, they are only possible and provoked by the article’s rich study, thoughtful analysis, and compelling story of corporate involvement in the making of international law in our modern, global context.

Cite as: Verity Winship, Business Lobbying Goes Global, JOTWELL (January 18, 2017) (reviewing Melissa J. Durkee, Astroturf Activism, 69 Stanford L. Rev. (forthcoming 2017), available at SSRN), https://intl.jotwell.com/business-lobbying-goes-global/.

Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design

Mila Versteeg & Emily Zackin, Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design, Am. Pol. Sci. Rev. (forthcoming 2016), available at SSRN.

In their recent paper in the American Political Science ReviewVersteeg and Zackin offer an important contribution to evolving debates on constitutional design, convergence and diffusion. They suggest that, far from being the only model in circulation in global constitutional thinking, the US constitutional model of highly abstract and entrenched constitutionalism is in fact no longer even the dominant model: at a US state level, and globally, a quite different model of very specific and flexible constitutionalism is in the ascendancy. This model blurs the line between constitutions and ordinary legislation. It also reflects a quite different kind of thinking about the relationship between constitutions, democracy, and the people: rather than empowering courts to interpret vague or abstract constitutional guarantees, and entrenching those decisions against repeal by ordinary democratic majorities, Versteeg and Zackin suggest that this model seeks to constrain courts, legislators and executive actors to act in line with the preferences of a majority of citizens.

In this sense, it represents a quite different take on traditional understandings of democracy and distrust: it is the expression of a form of popular distrust of elite institutions generally, rather than more particularized distrust of legislators of the kinds such as John Hart Ely envisaged.1 Versteeg and Zackin further argue that there is a close logical relationship in this context between a preference for constitutional specificity and flexibility: specific constitutions may help popular majorities control elite actors, but they are also more likely to require active updating by citizens themselves, rather than elite actors. As I have also suggested in prior work, whatever the scope for courts and legislators to update of a constitutional standard by way of ‘common law interpretation’,2 or polycentric forms of interpretation,3 there is far less scope to apply such approaches to more specific rule-like constitutional provisions.4

In addition to identifying this new model of flexi-specific democratic constitutionalism, and its logical inter-dependence, Versteeg and Zackin offer compelling evidence of its increasing diffusion or predominance both at a US state constitutional level and globally. Indeed, this empirical dimension to their project is particularly wide impressive, and no doubt one of the reasons the piece found a home in the APSR. One of the things I also particularly liked about the piece in this context is that it combines both state-of-the-art large and empirical approaches with a more historical, qualitative analysis of the historical origins of various flexi-specific constitutional provisions: drawing on Zackin’s earlier archival work for her excellent book, Looking for Rights in All the Wrong Places, the piece quotes from a range of legislative, newspaper and scholarly sources from the late 18th and early 19th century as to the origins of many specific constitutional provisions.

While I am very sympathetic to their project, their work did, however, raise two broad questions for me, in part connected with my own prior work on constitutional specificity and amendment. First, would it be useful to further disaggregate the model of flexi-specific constitutionalism into two broad categories: one aimed at the control of legislative and executive decision-making, and another at the control of courts? The two models potentially have somewhat different origins, or logics: in most cases, it seems likely that attempts to control legislatures or executive officials will arise out of the kind of principal-agent situation Versteeg and Zackin identify. I was reminded of this only last week visiting Chicago, when I came across a letter to Illinois residents outlining the scope of the proposed amendment to section 11 Art IX of the Illinois State Constitution: this amendment is very long, detailed, and if successful, could still be relatively easily repealed – and is all about the relationship between voters and their elected representatives. It attempts to limit the ability of certain local units to use funds appropriated for transportation for other purposes.

But for provisions speaking more directly to courts, in some cases at least, the origins of such provisions may be somewhat different: they might originate in a belief that it should be legislatures rather than courts that decide certain questions, or in a concern to provide ‘insurance’ for certain legislative policies against the risk of judicial invalidation.5 In some cases, provisions that purport to authorize certain forms of legislative action, and thereby prevent courts from invalidating such action, might thus have quite different origins or underpinnings to provisions that require forms of legislative action.6 A good example concerns the kinds of labour rights provisions found in various state constitutions in the US and discussed by Versteeg and Zackin at some length: some of these provisions were clearly directed at requiring state legislatures to limit working hours (mandatory by-law clauses), but others to insulating legislative action from judicial invalidation (permissive by-law clauses).

Second, I wonder whether flexi-specific constitutions are in fact a true alternative model of constitutional design, or something closer to an important sub-type or sub-form of constitutional design. As an empirical matter, it is not clear that the increasing specificity—and amendment—of many US state and global constitutions is in fact distributed evenly across all areas of constitutional law. Rather, it may well be that flexi-specificity is concentrated in certain areas – dealing with federalism, various legislative and executive policies, and not the fundamental democratic, separation of powers rule of law, or rights-based provisions of a constitutions. In Brazil, for example, as an important example of the trend Versteeg and Zackin identify, there have been large numbers of constitutional amendment since the adoption of the 1988 Constitution, but almost none of these amendments have touched what one might call ‘the basic structure’ of the Brazilian Constitution. In the US, state constitutions have also become increasingly specific against the backdrop of a quite abstract, and entrenched, set of federal constitutional guarantees that clearly modify or set limits on the scope of the flexi-specific state constitution. Think of the recent decision of the US Supreme Court in Obergefell: the Court held that the attempt to create increasingly specific prohibitions on same-sex marriage under state constitutions was inconsistent with the more abstract and entrenched guarantee of equal protection under the Fourteenth Amendment, and thus invalid and ineffective as a form of constitutional change.

Theoretically, we might have two broad reasons to doubt whether flexi-specific constitutions can succeed as a standalone constitutional model. First, if constitutions are extremely long and detailed, citizens may have difficulty understanding them, and thus be relatively unlikely to identify and defend the constitution. (Indeed in other important work, Versteeg has shown with Stephanopoulos that the ability to understand a constitution is a key determinant of constitutional identification.) This may itself mean that flexi-specific constitutions are far more likely to be replaced than more general, abstract ones, so that there is a kind of Darwinian pressure toward more abstract rather than specific constitutions.

Second, if constitutions are too specific, they may ultimately end up creating forms of inconsistency or overlap that necessarily require courts themselves to resolve a range of interpretive ambiguities. Tom Ginsburg and I make this point in our work on insurance swaps: we suggest that if drafters adopt highly specific but conflicting provisions, this effectively delegates to courts the task of resolving relevant conflicts. I have also made a similar argument about attempts to codify certain constitutional exceptions or carve-outs, and both the ambiguities this creates, and the degree to which ambiguity can be empowering rather than constraining of constitutional courts.

Ultimately, this may mean that for flexi-specific constitutions to endure, and/or achieve their aims in terms of judicial constraint, they cannot be entirely standalone models of constitutional design. Instead, they must be nested within a broader, more abstract and entrenched constitutional framework.

Constitutional ‘tiering’ is already a relatively familiar idea in the context of the design of constitutional amendment rules: as Richard Albert has pointed out, there are a range of constitutions worldwide that adopt different levels of entrenchment or flexibility, based on the nature of the question at stake. David Landau and I have also recently suggested that constitutions often adopt a tiered approach to constitutional language, as well as entrenchment: they adopt quite specific provisions for a range of routine or ordinary constitutional matters, but more abstract, parsimonious language for core constitutional values designed to bind a community together, or protect the basic constitutional or democratic order.7

Tiering of this kind may be done better or worse in different constitutions, but it seems a relatively common feature of democratic constitutional design: just think of the role of preambles or constitutional value statements. As Landau and I have pointed out in the context of constitutional entrenchment debates, tiering of this kind can also often occur ex post – by judges selecting certain provisions for special reinforcement and validation – as well as ex ante.

In sum, I am highly persuaded by both the empirical evidence Versteeg and Zackin present, and by their claim that the field of comparative constitutional studies needs to do more to recognise and grapple with the increasing centrality of flexi-specific forms of constitutionalism. But I also wonder if we shouldn’t divide this trend into two types (legislative and judicial-facing), and do more to recognise it as a form of nested democratic constitutional development, which is best understood as part of a tiered approach to both constitutional amendment and language.

  1. Compare John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Rosalind Dixon, Constitutional Drafting and Distrust, 13 Int’l J. Const. L. 819 (2015). []
  2. David Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996). []
  3. Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943 (2003). []
  4. Rosalind Dixon, Updating Constitutional Rules, Sup. Ct. Rev. 319 (2009); Rosalind Dixon, Amending Constitutional Identity, 33 Cardozo L. Rev. 1847 (2012). []
  5. Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003); Tom Ginsburg & Rosalind Dixon, Constitutions as Political Insurance (Unpublished manuscript, 2016). []
  6. Compare Rosalind Dixon & Tom Ginsburg, Deciding Not to Decide: Deferral in Constitutional Design, 9 Int’l J. Const. L. 636 (2011) (identifying mandatory versus permissive by-law clauses). []
  7. Rosalind Dixon & David Landau, Exporting Art V? Tiering Constitutional Amendment (unpublished manuscript, 2016). []
Cite as: Rosalind Dixon, Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design, JOTWELL (November 17, 2016) (reviewing Mila Versteeg & Emily Zackin, Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design, Am. Pol. Sci. Rev. (forthcoming 2016), available at SSRN), https://intl.jotwell.com/constitutions-un-entrenched-toward-an-alternative-theory-of-constitutional-design/.

Sheltering the Public From Intellectual Property

Sam Halabi, International Intellectual Property Shelters90 Tul. L. Rev. 903 (2016).

Often formulating a legal policy response to a problem starts with finding the correct vocabulary. While complex economics, political, and sociological crises do not get managed with magic words, failure to give a name to a problem makes solutions elusive. In the case of international intellectual property, the problem of overly expansive intellectual property rights, sometimes adopted by nation states under trade and finance pressures, is seen solely as a solution to the ubiquity of piracy and theft of economic value. Values of access and commons management offer some countermeasures to broad property rights. But these responses sometimes feel piecemeal and less than systematic.

Enter Professor Sam Halabi, a scholar and teacher of international health law at University of Tulsa Law School, shifting to University of Missouri, Columbia Law School in January 2017. His recent article in the Tulane Law Review is one I like a lot, and I hope others active in international intellectual property law and health policy do as well. Professor Halabi’s contributions are conceptual and linguistic. International Intellectual Property Shelters, although with unfortunate resonances of “tax shelters,” describes pockets created by treaties and national law of exceptions to strong intellectual property rights. These pockets permit access to medicines, promotion of biodiversity, regulation of neonatal care, and control of tobacco—each threatened by the rampant spread of intellectual property rights. Upon this neologism, Professor Halabi delineates an established international intellectual regime that governs and limits intellectual property rights. His article not only informs us about the key features of this regime and the legal, political, and economic mechanisms that drive it.

Professor Halabi’s article defines a unique and important niche in the field of international law. At the intersection of intellectual property and health law, his work illustrates how institutions are designed at the national and global levels to regulate intellectual property rights for the public interest. What the article reveals is a rich array of transnational regulations, mediated through treaties that support national legislation to limit intellectual property rights in the arena of health and safety. The Tulane piece provides several examples, including the 2002 Doha Declaration on Health and Safety, proposed treaty on medical research and innovation, the WHO’s influenza pandemic preparedness framework, and international codes for the marketing of breakfast. His two other examples on biodiversity and tobacco control illustrate for our purposes the tone and structure of his arguments.

The United Nations Convention on Biodiversity, Professor Halabi reminds us, has created an international framework that has served to create national legislation regulating patent rights in agriculture and genetic resources. These regulations promote regional diversity in agricultural products through treaties that allow for the saving and reuse of genetically modified seeds by farmers. In addition, they serve to allow multinational corporations to make use of traditional agricultural knowledge local to the community and share the benefits of commercialization with subnational constituencies, such as indigenous communities, farmers, and holders of traditional knowledge. Such benefit sharing serves to direct profits from exploitation of traditional knowledge back to the national economy from multinationals.

Tobacco control has also been the subject of an emerging international regulatory regime. This regime is marred by economic and legal tensions between tobacco companies seeking new markets for their products and national governments desiring to stem the adverse health consequences from tobacco consumption. While the agreements over biodiversity center on patent rights, limitations on trademark rights and tobacco advertising are the basis for the international regulatory system for tobacco. The development of this system, however, has been far from smooth as tobacco companies challenge the restrictions on their trademarks, through such requirements as plain packaging, by alleging violations of bilateral investment treaties with national governments. So far, the efforts of the companies have not been successful, and regulations on tobacco for the goals of health and safety serve as another example of an international intellectual property shelter regulating rights for the public interest.

As Professor Halabi describes, these shelters “regulate intellectual property by creating conditions for access to patentable subject matter, elimination or substantially modifying trademarks at their core level (i.e. by source identification), and redistributing the benefits of intellectual property that either draw from the resources of low- and middle-income countries or disproportionately affect their welfare, or both.” (P. 964.) He concludes, “international intellectual property shelters mediate the creation, flow, and concentration of global wealth between wealthy and low- or middle-income countries.” (P. 971.)

Professor Halabi has identified an important set of developments in international intellectual property law. He has also clearly delineated how these developments are implemented in practice, both at the transnational level through treaty regimes and at the national level through legislation. This article should receive attention from a range of scholars, especially those working in international intellectual property law and health law. Professor Halabi’s work also has much to offer for policymakers and those interested in institutional design of regulations. I look forward to seeing how Professor Halabi develops this line of research, especially as he moves from article to book. The end product should present a much-needed normative and political framework for understanding international intellectual property. For now, however, this article provides much fodder for debate among scholars and policymakers.

Cite as: Shubha Ghosh, Sheltering the Public From Intellectual Property, JOTWELL (October 19, 2016) (reviewing Sam Halabi, International Intellectual Property Shelters, 90 Tul. L. Rev. 903 (2016)), https://intl.jotwell.com/sheltering-the-public-from-intellectual-property/.