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Saving Constitutional Democracy from the Right (and the Left)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Clarifying Populism

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

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

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

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

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

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

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

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

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

Layering Property, Disseminating Knowledge

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Nature of Judicial Power

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bypassing Intransigent Legal Institutions

Mariana Mota Prado & Michael J. Trebilcock, Institutional Bypasses (2018).

An implicit, if not often explicit, premise of the cluster of work often identified as “law and development” is that there are distinct spheres of legal reform activities in countries deemed “developing” and in those that have reached the status of “developed.” Many critiques of these presumptions have raised concerns about cultural politics and empirical verification. And while most acknowledge that institutions matter, making use of this insight has generated more ideological heat than practical certainty. Especially in these darker days of democratic backsliding and growing authoritarianism, grappling with the tangled past of efforts to advise or orient national legal reform projects has left many with the question of “what now?”

Mariana Prado and Michael Trebilcock’s new monograph, Institutional Bypasses, takes on this challenge by articulating a more procedural, methodological answer to this question, “what now?,” in lieu of advancing a renewed host of substantive best practices. In line with their recent field-leading publications, Prado and Trebilcock use the concept of the institutional bypass to model the empirically-committed experimentalism they have come to champion by presenting legal reform as an iterative learning process squarely aimed at avoiding the pitfalls of past efforts.

Institutional Bypasses provides a comprehensive and systematic interdisciplinary integration of law-and-development debates with theoretical and applied literatures in economic and political science. But its most striking quality is that, through its sober and serious reflection on the relationship of law to larger debates in economic and political development, it collapses many of the very distinctions that often define law and development itself. In grappling with the struggles of legal reform efforts in Brazil and India, it becomes clear that these are the same challenges faced by anyone seeking to reform the law governing police violence, health care provision, access to justice, and public education. This analysis makes it difficult to see anything but common ground in what were once considered distinct “developed” and “developing nations.” Prado and Trebilcock do not set out to do this explicitly, but the main premise of the bypass should seem familiar to anyone working on changing the law and facing entrenched interests and regulatory gridlock.

The second chapter of Institutional Bypasses provides conceptual clarity for the term by using their leading example, the Poupatempo reform (PTP) initiated by the Brazilian state of Sao Paulo in 1997. As dedicated incrementalists, Prado and Trebilcock do not latch on to an attempt at total legal reform or at an evaluation of broad economic or social rejuvenation. Instead, they focus on the PTP because it sought to reform the provision of a wide range of routine, but important, government services that citizens had to expend great effort, or pay great sums privately, to navigate. A sort of “one-stop shop” to help streamline and localize access to these services, the PTP is their ideal type of an institutional bypass, as it sought to provide a new avenue for service provision rather than supplant the existing system. They then look to the success of the system as demonstrating how this type of reform alleviates many of the problems that regularly stifle positive legal change by subduing stakeholder resistance and presenting politicians with a lower cost commitment which can be increased only if met with popular utilization and endorsement. Moreover, once in place, a bypass can create a field of regulatory competition that can induce reform on its own, or later lead to merger with the previous system. The PTP is then used throughout the book to explore how other reforms compare to its model of a pilot project, which through iterative learning and feedback can both discover and integrate the informal norms that frustrate more aggressive top-down reforms.

The third chapter of Institutional Bypasses is where Prado and Trebilcock place the bypass in the context of a wide range of debates about legal reform. This chapter will be of interest to those looking from within the law to debates in other fields of reform. It would also be of particular help to those in other fields looking for an introduction into debates within law and development. Culminating with an interrogation of the classic “exit, voice, and loyalty” paradigm of institutional performance advanced by Albert Hirschman, this chapter is one of the first steps towards showing that that there is no geographically distinct theoretical ground for legal change.

Empirically, Chapter Four of Institutional Bypasses is the most instructive as it analyzes how the bypass model fits three very different arenas of legal reform in modern Brazil: police violence, public health care provision, and labor union governance. Here, Prado and Trebilcock make clear that their analysis is not meant to validate any of the reforms as uncontested successes, but that key aspects of their rollout and development show the potential virtue of the space for policy experimentalism that a bypass allows. As a result, they are able to look at both the successes and failures of these efforts. The rise and fall of the Unidade de Polícia Pacificadora’s (UPP) attempt to bypass the traditionally corrupt and hierarchical police administration in Rio De Janeiro shows how such a bypass can fill an aperture for reform that would not be wide enough for broader change. At the same time, the UPP shows how a bypass divorced from its more iterative and feedback-oriented initiation can lead to reconvergence with the very same (here, violently repressive) policies it sought to avoid. The development of the Unidades de Pronto Atendimento (UPAs) urgent care centers in the public health system offers a more sanguine pattern of a reform as they sought to complement an existing hospital-based care system which persistently resisted outside reform. The rise of the new central union, Central Única dos Trabalhadores (CUT), during Brazil’s democratization effort again shows how a bypass can be wildly successful even if it does not lead to radical change.

Chapter Five explores a number of “spontaneous” bypasses that were primarily initiated by private actors. Here, through the development of private security forces in Latin America and private modes of education and dispute resolution in India, the potentials and limits of bypasses are again demonstrated. While at first blush these examples appear distinct from the examples of Chapter 4, Prado and Trebilcock use these examples to show that the state is still the primary actor in molding the space for such private experimentalism to unfold and should contemplate its constitutional and distributional duties in doing so.

In the end, anyone working on these issues outside of Brazil and India will draw numerous connections that Prado and Trebilcock seek to reveal in legal reform more generally. The productive contrasts and commonalities of “community policing” in Brazil and the United States become clear. Similarly, debates about charter schools and private primary schools in India move away from universal models and cultural generalizations toward mutual conversations about evaluation and scalability. These insights may not lead to the grand re-designs imagined by the first generation of reformers inspired by new institutional economics, but Prado and Trebilcock would say that such inspiration is best put to practical use by taking seriously the need to start with the particular rather than the universal.

If there is an aspect of Institutional Bypasses that may leave some readers less than satisfied, it is one that Prado and Trebilcock admit from the outset. The ideal of incremental experimentalism fits the PTP well because reducing the costs of accessing government documents is far from politically controversial—and the resistance of entrenched providers is glaring self-interested. But if one moves to issues such as crime, education, and labor, then the very terms of evaluation become strongly contested. And broad shifts in these values can fully rework institutions once under careful refinement. The fundamental reform of Brazil’s system of labor union regulation, by its current administration, has rendered mute the incremental debates of the last decade. The rapid degeneration of India’s multi-cultural political project has done the same for the very meaning of the nation’s system of public education.

The impact of broad political shifts on ongoing agendas would come as no surprise to legal reformers in any country. Prado and Trebilcock thus help lead us to a properly comparative understanding that legal change requires a portfolio of strategies, none of which can ever be fully sufficient. Their explication of the institutional bypass as an entrée into a serious discussion of policy experimentalism thus demands none of the ideological antipathy for more systemic or radical change often expressed by those who fetishize gradual change as a universal good onto itself. In similar turn, it shows that even change conceived on grander terms must never collapse into justification through pure ideological attachment either. The balance between the two is a question of politics, but such reality renders neither beyond the grittier realities of sustaining a responsive and reactive legal system.

Cite as: Jedidiah Kroncke, Bypassing Intransigent Legal Institutions, JOTWELL (April 19, 2019) (reviewing Mariana Mota Prado & Michael J. Trebilcock, Institutional Bypasses (2018)), https://intl.jotwell.com/bypassing-intransigent-legal-institutions/.

Net Raciality: How Racial Bias Pervades the Digital Space

Catherine Powell, Race and Rights in the Digital Age, 112 Am. J. Int’l L. Unbound 339 (2018).

“The adage ‘on the internet, nobody knows you’re a dog’ reflects a now naïve belief in the emancipatory potential of cyberspace,” writes Catherine Powell in her splendid new essay on race, internet, and international human rights published as part of a Symposium issue on the seventy-year anniversary of the Universal Declaration of Human Rights. In Race and Rights in the Digital Age, Powell critiques the belief according to which the digital space is a raceless and liberating utopia. She compares this online fiction to the offline ideology of colorblindness. Much like colorblindness has been used to conceal and perpetuate racial inequality, the supposed post-racialism of the digital world is a fig leaf masking the fact that it is pervaded with racial bias.

In making this point, she builds upon Osagie Obasogie’s critique of colorblindness that uses a research design involving interviews with blind people about race. Obasogie revealed that even people blind since birth are not colorblind, but just as likely as sighted people to equate race with visual characteristics. Similarly, Powell shows that “[r]ace is a deeply entrenched social construct—both online and offline—even when we cannot literally always ‘see’ it.”

Powell’s essay includes a meditation on how our preconceptions about racial difference structure our digital lives and, therefore, some of today’s most fundamental processes of communication and social outcomes, leading to new forms of discriminatory practices. This state of affairs, she argues, undermines the Universal Declaration of Human Rights’ promise that “[e]veryone is entitled to all the rights and freedoms set forth in th[e] Declaration, without distinction of any kind, such as race, [etc.].”

She marshals ample evidence to substantiate her claim that race is perceived, if not literally “seen,” online. In particular, she analyzes technologies such as artificial intelligence which incorporate human biases in algorithms giving effect to racial prejudices and reinforcing structural racial inequalities by affecting “which school a child may attend,” “how a credit score is calculated,” or “whether to allow an individual out of jail on bail.” She also points to the constant data collection on users, which enables private and public entities to make predictions about individuals’ racial identities and to treat them differently in their provision of goods and services.

Powell’s piece is also a methodological call to action, inviting further collaborations between critical race theory and data privacy in the context of international and comparative law scholarship. It paves the way for work exploring the racial impact of several features of the web in the United States and elsewhere. The repeal of net neutrality protections in the United States and its consequences on content that matters of communities of color is but one domestic example. The modes of racialization at work in web content and capabilities developed, hosted, or used in countries that claim to neither collect nor use racial data (such most European countries) would also benefit from analysis inspired by Powell’s essay. Globally, the centering of online public knowledge around the perspective and languages of rich, global North countries calls for sustained scrutiny of the underlying role of national and international law. To dismantle discrimination, in other words, legal scholarship ought to take the harms produced by law and digital technology seriously, striving to make visible the way race functions as an organizing social principle online as well as offline.

Cite as: Mathilde Cohen, Net Raciality: How Racial Bias Pervades the Digital Space, JOTWELL (March 18, 2019) (reviewing Catherine Powell, Race and Rights in the Digital Age, 112 Am. J. Int’l L. Unbound 339 (2018)), https://intl.jotwell.com/net-raciality-how-racial-bias-pervades-the-digital-space/.

Does TRIPS Stop International IP Free-Riders?

Daniel J. Hemel & Lisa Larrimore Ouellette, Innovation Policy Pluralism, 128 Yale L.J. 544 (2019).

Innovation policy—a relatively new phrase for an old set of top-down competitiveness approaches (e.g. “industrial policy,” “science policy,” “research policy,” and “technology policy”)—is necessarily a combination of centralized investment, structure of private-sector incentives, and public policy priorities.This combination has always been unwieldy, multivariate, and politically charged. As a result, constituencies favoring one or other approaches (e.g. longer patent protection, more funding of public universities and research infrastructure, tariff or non-tariff import measures) have lacked a unifying framework through which to analyze shared problems.

In Innovation Policy Pluralism, Daniel J. Hemel and Lisa Larrimore Ouellette provide that framework. With a focus on intellectual property law, Hemel and Ouellette take the universe of innovation instruments—patents, prizes, grants, tax credits, purchase leverage, public licensing and other alternatives—and create a coherent method by which to assess and value them. Dissecting these options into “innovation incentives” and “allocation mechanisms,” Hemel and Ouellette urge policy-makers to consider alternatives under which these incentives and mechanisms may be matched, mixed, or layered.

Their contribution is one I like a lot, and it will certainly shape important debates among intellectual property scholars in the U.S.; for readers of JOTWELL International and Comparative, it is Hemel’s and Ouellette’s extension of their argument to international intellectual property law that may be of most interest. They argue the following: first, their framework may assist countries in better tailoring their innovation policies within prevailing international intellectual property instruments; and second, international intellectual property law itself plays a regulatory role, ensuring that some countries do not free-ride on the innovation of others.

According to them, the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)—often taken as the world’s international IP law—may be made more flexible more easily through the framework they construct. For example, “a country could provide incentives [to innovate] though grants and prizes conditioned on relinquishing IP rights…[o]r countries can both subsidize the domestic production of knowledge goods through grants and tax credits and purchase domestic patent rights from the producer, while still allowing the producer to collect overseas profits (with the state potentially collecting some of those profits through a tax on the domestic producer).” (P. 590.)

With respect to their second point, Hemel and Ouellette argue that international IP law (again, impliedly TRIPS) exists to ensure that there is a global set of incentives so that all countries either invest in innovation or compensate those who do. So far as it goes, Hemel and Ouellette are probably correct, but as they no doubt also know, the proliferation of so-called TRIPS-plus agreements, which often invade deeply into the policy-setting prerogatives of sovereign states, may limit the capacity of resource-poor countries to shape their innovation policies as freely as the authors imply.

To  be sure, Hemel and Ouellete contemplate the possibility of cost-sharing outside of international IP law, and there are plenty of examples under way like the World Health Organization’s Pandemic Influenza Preparedness Framework and a contemplated biomedical research and innovation treaty committed to non-IP incentives for research into Type II and Type III diseases. In a separate work, I have argued that such cost-sharing vehicles proliferate as international intellectual property law further constricts national-level regulatory prerogatives, especially those affecting basic human needs.

Innovation Policy Pluralism is a valuable contribution not only to the intellectual property literature, where it might naturally nest, but also to scholars of international law and international relations. The authors clearly have some “TRIPS flexibilities” in mind, and my expectation is that Hemel and Ouellette will use their framework to tackle some of the most important problems facing countries that feel whipsawed by the needs of their domestic populations and the strictures of international intellectual property law.

Cite as: Sam F. Halabi, Does TRIPS Stop International IP Free-Riders?, JOTWELL (March 5, 2019) (reviewing Daniel J. Hemel & Lisa Larrimore Ouellette, Innovation Policy Pluralism, 128 Yale L.J. 544 (2019)), https://intl.jotwell.com/does-trips-stop-international-ip-free-riders/.

In Support of Arbitration

Pamela Bookman, The Arbitration-Litigation Paradox, __ Vand. L. Rev. __ (forthcoming), available at SRRN.

Arbitration and litigation are often treated as opposites. Arbitration in its idealized version is sleek, fast, and endlessly adaptable. Litigation is its foil: clunky, inexpert, and sometimes captured. As a consequence, being pro-arbitration and anti-litigation are assumed to go hand-in-hand.

In The Arbitration-Litigation Paradox, Pamela Bookman challenges this account. With a focus on international commercial arbitration, Bookman suggests that hostility to litigation undermines the key role of courts in supporting arbitration. In other words, to be pro-arbitration, sometimes courts need to be pro-litigation as well.

An interesting aspect of using international commercial arbitration as the core example is that many critiques about party consent and sophistication are simply not present. Arbitration provides a much-needed “neutral and predictable forum for potential disputes” that cross national borders. And “[b]usiness-to-business arbitration generally and international commercial arbitration in particular are the paradigm, original context for the pro-arbitration policy in the first place.” (P. 34.)

In the context of sophisticated commercial parties and cross-border transactions, one would expect deference to parties’ private contracting. In its arbitration cases, however, the U.S. Supreme Court overrides the choices of the contracting parties. It sacrifices arbitration’s “private-law values” of autonomy and adaptability in favor of what Bookman calls “essentialist values” that focus only on arbitration’s difference from litigation. (P. 20.) Courts strike down “forbidden characteristics” of arbitration “that make arbitration look more like litigation.” (P. 34.)

In Bookman’s account, this essentialist approach has no place in a world where distinctions between arbitration and litigation are not always clear. (Note the complaint in the literature that commercial arbitration is being “judicialized.”) The term “arbitration” itself is overbroad, obliterating an important distinction between arbitration of consumer claims, where critics point to overexpansion and negative effects, and international commercial arbitration, where courts are “insufficiently supportive.” Bookman’s proposed replacement for the Court’s essentialist views is in part “a clarion call to regulate arbitration in a subject-matter-specific way.” (P. 49.)

The article highlights the Court’s rhetoric about the virtues of arbitration and the vices of litigation. For any reader who sees this as a rough-fought battle over access to the public court, terms like the “essentialist values” of arbitration may seem a bit bloodless. A more rabblerousing version might tell a story about the Court’s lip service to freedom of contract and the talisman of consent, and how these give way to an opposing agenda. (Dismantling aggregate action? Defanging the plaintiffs’ bar?)

But these aspects of the fight over arbitration often dominate discussions, obscuring other underlying patterns. Bookman’s elegant framework and isolation of the most defensible area of arbitration allow the reader to look past these usual debates. The article challenges the Supreme Court on the extent to which its nominally pro-arbitration decisions actually support this core category of arbitration. And Bookman offers a subtle shift of perception on the major arbitration cases.

The Arbitration-Litigation Paradox is a worthwhile read. It leaves some hanging threads, but this is all the more reason to keep an eye out for Bookman’s future work. The Adjudication Business, which she previews at the article’s end, promises to pull on one of these threads: the “complex, competitive relationship between litigation and arbitration.” (P. 43.)

Cite as: Verity Winship, In Support of Arbitration, JOTWELL (January 9, 2019) (reviewing Pamela Bookman, The Arbitration-Litigation Paradox, __ Vand. L. Rev. __ (forthcoming), available at SRRN), https://intl.jotwell.com/in-support-of-arbitration/.