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Challenging Home Court Advantage

John Coyle & Katherine Richardson, Enforcing Inbound Forum Selection Clauses in State Court, 53 Ariz. St. L.J. 65 (2021).

As national and international commerce move increasingly to online platforms – which themselves tie together nearly every corner of the globe – the problem of dispute resolution when business goes awry or products cause injury has moved to a central position for scholars of private law, both domestic and international.  In their careful and important work, Enforcing Inbound Forum Selection Clauses in State Court, John Coyle and Katherine Richardson address an important aspect of this problem: “inbound” forum selection clauses, i.e. those that require adjudication in the forum where the lawsuit is filed. Coyle and Richardson distinguish “inbound” forum selection clauses from “outbound” forum selection clauses – those that require adjudication in another forum. This distinction, they rightly note, is often missed by federal district courts and it is critical for analysis under Fed. R. Civ. P. 4(k), which in essence makes federal district court jurisdiction coextensive with the general law of personal jurisdiction of the state in which the federal district court sits (itself a quirk of political dynamics in the U.S. federal system).   This article is one I like a lot, and I hope others active in the study and shaping of private international law do as well.

In addition to the important distinction they highlight in the law governing forum selection clauses – inbound and outbound – Coyle and Richardson undertake a heroic effort to 1) map the legal terrain of state law governing inbound forum selection clauses (there are four general regimes, with a majority of states following the approach adopted by the U.S. Supreme Court in The Bremen v. Zapata Off-Shore Co. concluding forum selection clauses are broadly enforceable absent an extraordinary showing of unreasonableness or unfairness); 2) describe the unfairness that results from current treatment (they begin the article with Google’s standard terms that require adjudication in Santa Clara County, California); and 3) propose solutions based on the size and sophistication of the party disadvantaged by the inbound forum selection clause.

Coyle and Richardson’s treatment is particularly timely in light of recent U.S. Supreme Court jurisprudence that has sought to remake the law of personal jurisdiction applicable to both domestic and international litigants. The U.S. Supreme Court has signaled 1) that pre-selected fora are favored, therefore allowing large corporate plaintiffs to set the terms of litigation (not only forum as it happens, but also law and arbitration) and 2) large corporate defendants are generally amenable to suit only where they are incorporated or have a principal place of business, the fora for which have also contracted over time.

The article is divided into “law on the books” and “law in action”, the latter of which also involves methodological rigor: The authors identify 283 cases comprised of every modern published and unpublished case decided prior to April 2020 in which a defendant challenged the enforceability of an inbound clause in state court. The authors find enforcement in approximately 80% of those cases and analyze some sub-phenomena resulting from state-level judicial and legislative action. Key insights from this analysis are the grounds that have prevailed in challenging enforcement of inbound clauses including failure in the consent process, lack of specificity, floating clauses, lack of connection to jurisdiction, and public policy.

Coyle and Richardson advocate three reforms: voiding of those clauses in contracts of adhesion with unsophisticated parties, precise components of notice including specificity and a “single forum” requirement, and lowering the standards for enforceability set forth in The Bremen. While the first of these has intuitive appeal given the abuses Coyle and Richardson have identified, it also appears the least likely to be achieved given trends in both state and federal courts. The latter two appear more promising, even if suggested in generally adverse jurisprudential circumstances.  They note that the Supreme Court of Utah has adopted a “rational nexus” approach that appears to embody a change they welcome, and the Florida Supreme Court interpreted its long-arm statute so as to exclude “consent alone” jurisdiction, but those are relatively rare examples in a terrain characterized by deference to written choice-of-forum clauses and a federal judiciary that appears to often mistakenly blend inbound and outbound inquiries.

Coyle and Richardson have undertaken a valuable exercise in explaining a phenomena that is only likely to grow and importance, and have proposed well-reasoned and supported reforms that state judges, legislatures, Congress, and the federal judiciary should consider as well as scholars of private international law.

Cite as: Sam F. Halabi, Challenging Home Court Advantage, JOTWELL (June 30, 2022) (reviewing John Coyle & Katherine Richardson, Enforcing Inbound Forum Selection Clauses in State Court, 53 Ariz. St. L.J. 65 (2021)), https://intl.jotwell.com/challenging-home-court-advantage/.

Law Enforcement as Foreign Policy

Steven Arrigg Koh, The Criminalization of Foreign Relations, 90 Fordham L. Rev. 737 (2021).

Is criminal prosecution a tool of foreign policy? Should it be? The US arrest of Huawei’s CFO and US indictments of Russian hackers, Venezuelan President Maduro, and others make these particularly timely and worthwhile questions. Steven Arrigg Koh’s article, The Criminalization of Foreign Relations, provides a response, ultimately arguing for a constrained role of “extraterritorial law enforcement policy” in foreign relations.

The article’s main move is to consider criminal actions as part of the classic list of foreign policy tools alongside “diplomacy, cooperation and association agreements, trade, economic sanctions, military force, and the use of foreign aid.” (P. 739.) The author then makes the case for a cabined and depoliticized use of the tactic. Criminal actions, he suggests, should be confined to contexts that take advantage of their basic characteristics: They are individualized, retrospective, involve lots of process, and have high stakes, with incarceration as a possible outcome. (Pp. 757–58.) And they are “adjudicated before a neutral branch of government in adherence to a broader rule of law.” (P. 758.)

The article is part of an ongoing project, one that raises and wrestles with urgent questions beyond what any one article can resolve. This and an earlier publication, Foreign Affairs Prosecutions, follow a rich thread that draws on the author’s experience as a prosecutor as well as his other research.

The work is at the underexplored intersection between criminal law and foreign policy. As the author points out, the two literatures do not always share basic assumptions. Crucially, criminal law literature views overcriminalization as the problem, while international law scholars are “largely sanguine” about the involvement of criminal authorities in the form of international criminal courts. (P. 741.)

The Criminalization of Foreign Relations works at two levels. It does not shy away from big underlying problems. It addresses, for instance, the eroded faith that criminal justice is separate from political motivations. Elsewhere in the piece it asks fundamental questions about the purpose of criminal law. (P. 782.)

And yet the article also looks at the fine-grained details, particularly about federal prosecutors. One intriguing example is the DOJ’s “China Initiative.” The program was initiated in 2018 to “’reflect[] the strategic priority of countering Chinese national security threats and reinforce[ ] the President’s overall national security strategy.’”1 It was still in place as of the article’s writing.2

The article also takes us even deeper into the structure of federal prosecution in its discussion of the “national and international security coordinators,” AUSAs trained on “transnational and international issues arising in U.S. federal criminal prosecution.” (Pp. 780–81.) The article’s most compelling prescriptions also operate at this level, on the ground. (Pp. 778, 781.)

The article sorts between good and bad uses of extraterritorial law enforcement policy. The cautionary tale is the “global arrest game”—think of the controversy over Huawei’s CFO. (P. 754.) The paper could highlight more systematically situations where coordination works. (My own work on coordination in civil enforcement may motivate my interest.) One good use is when all the countries involved define the conduct as criminal or even seek criminal action against the particular target. Akin, maybe, to the idea of “dual criminality” in extradition. (Pp. 762, 786.) Is that the only good use? What, if anything, falls between enforcement cooperation and playing the global arrest game?

Corporate versus individual defendants might also be an organizing axis. Again, the author touches on this briefly (Pp. 752–53), but the categories might be able to do more work in sorting good uses from bad.

The role of criminal prosecution beyond US borders is complicated. And law review articles do not always lend themselves to writing that does not offer a single shiny silver bullet, but rather is ultimately an argument for restraint. The Criminalization of Foreign Relations has a laudable goal – to develop “a principled role for U.S. extraterritorial law” (P. 787) – and an approach that combines expertise with willingness to think about essential underpinnings.

  1. P. 745 n.34 (citing U.S. Dep’t of Just., Information About the Department of Justice’s China Initiative and a Compilation of China-Related Prosecutions Since 2018 (June 14, 2021).
  2. For an update, please see this Law360 article.
Cite as: Verity Winship, Law Enforcement as Foreign Policy, JOTWELL (May 30, 2022) (reviewing Steven Arrigg Koh, The Criminalization of Foreign Relations, 90 Fordham L. Rev. 737 (2021)), https://intl.jotwell.com/law-enforcement-as-foreign-policy/.

Borders and Race as Intertwined Forms of Exclusion

E. Tendayi Achiume, Racial Borders, __ Geo. L. J. __ (forthcoming, 2022), available at SSRN.

If you are a citizen of North America, Europe, Australia, or New Zealand, chances are that before the onset of the pandemic you rarely had to think twice before crossing a border. Armed with your passport and a smile, the world was wide open to you. Yet, since March 2020 you may have encountered for the first time what it means for a border to be closed—or barely open—to you. E. Tendayi Achiume’s pathbreaking new Article, Racial Borders, powerfully evinces how this experience is racialized given the asymmetry between the hyper-mobility of some compared to the enforced immobility of the majority of the world’s population, as echoed in the bell hooks quote wrapping up her analysis, “[f]rom certain standpoints, to travel is to encounter the terrorizing force of white supremacy.” Achiume concludes by emphasizing that the issue of racial borders is not primarily an immigration problem but rather one that implicates our international legal order and its fundamental inequities.

What is a national border? What is a territorial border? Achiume uses “the term ‘racial borders’ to refer to territorial and political border regimes that disparately curtail movement (mobility) and political incorporation (membership) based on race and sustain international migration and mobility as racial privileges.”

Her central thesis is twofold. First, she shows that the core purpose of borders is to enforce exclusion or inclusion on a racial basis. Whiteness, she demonstrates, confers privileges of international mobility and migration, while non-Whiteness, and Blackness in particular, function as sites of exclusion. Facially race-neutral legal categories and tools such as sovereignty, citizenship, nationality, passports, visa policies, and digital border technologies result in differential treatment and outcomes based on race. Second, Achiume invites us to think about race itself as a special kind of border. In the contemporary migration context, it is used as a border control device to police people’s belonging to certain spaces and territories. Non-Whites are the victims of racial profiling and a “racialized presumption of illegality and outsider status.” Whiteness, by contrast, “functions as a mechanism of presumptive inclusion . . . and mobility facilitation.”

To ground her claims, Achiume focuses on the legal systems and histories of Australia, the European Union, the United Kingdom, and the United States. She exemplifies how Blackness in particular functions as a site of exclusion based on two grim stories.

The first is the 2017 drowning of twenty-six Nigerian girls and women in the Mediterranean Sea during their unsuccessful attempt to reach Europe by boat. Far from being an isolated crime or tragedy, Achiume stresses that “[t]heir death is a predictable outcome of the racially exclusionary migration governance regime” that typically only allows the mobility and inclusion of a small number of refugees and migrants on subordinate terms and to serve the economic needs of First World countries.

The second, which took place one century earlier, is the killing of Black teenager Eugene Williams, who drowned after being attacked by a White stone thrower. While rafting with friends on Lake Michigan, Williams had inadvertently wandered across an invisible line that marked the part of the waters considered to be for Whites only, prompting Achiume to analyze the attack as an “act of border enforcement.” She observes that Williams’ “Blackness—the specific social, political, and legal construction inscribed in the color of his skin—operated as a border.”

These two examples, despite their distance in time and space, illustrate how borders, as imaginary lines drawn around specific territories by law or convention, and race, the colonially and socially constructed hierarchical grouping of people believed to share ancestry and physical similarities, are interdependent.

Building upon her previous scholarship on migration as decolonization, Achiume highlights the neocolonial character of racial borders, that is, their reproduction of colonial-era power relations that preserve inequality among nations and their peoples. She notes that “some nation-states structurally benefit from global or transnational interconnection at the expense of others,” describing citizenship as a form of capital through which rich countries transmit accumulated wealth from one generation to another. Racial borders thus sustain the debt that “First World nation-states owe Third World persons” for their colonial extraction and continued exploitation.

Achiume’s article makes groundbreaking contributions to comparative and international law, immigration and refugee law, as well as to political philosophy and theories of sovereignty. It is sure to inspire exciting new intersectional scholarship that will focus on the racialized and gendered construction of borders—among other identity traits implicated in national and territorial demarcations.

Cite as: Mathilde Cohen, Borders and Race as Intertwined Forms of Exclusion, JOTWELL (April 27, 2022) (reviewing E. Tendayi Achiume, Racial Borders, __ Geo. L. J. __ (forthcoming, 2022), available at SSRN), https://intl.jotwell.com/borders-and-race-as-intertwined-forms-of-exclusion/.

Empathy as Pragmatism: Facing the Challenges of Globalization in a Polarized World

I am not predisposed to scholarship written in an idealistic register. For many contemporary thinkers—in most any field—greater insight into modern political trends gravitationally pulls one toward cynicism. Some of this very cynicism encircles debates in international law that question whether idealism itself has been unwittingly complicit in bringing about the world of ever-growing inequality and retreating democratization now often centerpiece in global legal scholarship.

As such, I was not predisposed to like Six Faces of Globalization: Who Wins, Who Loses, and Why It Matters. I had long read with interest the scholarship of its two authors, Anthea Roberts and Nicolas Lamp, whose previous work has rarely been overtly optimistic about the international legal order. But Six Faces is an idealistic book to its very core and premise. Moreover, in working through a book of great ambition and intellectual agility, it is invariable to find points of disagreement, even discomfort, among its diverse insights. Yet, what is most striking about Six Faces is that throughout you can feel the authors’ dedication to finding a constructive way to be publicly facing international academics when most public spaces are thoroughly polarized and rife with contempt. It is in this reading that I found it both provocative and challenging.

The main ambition of Six Faces is on its face diagnostic. It seeks to identify and elucidate six different narratives regarding modern globalization which shape regulatory responses to its challenges. In their introductory chapters, Roberts and Lamp review the idea of narratives in ways that will be familiar to those in various disciplines—emphasizing how they interpret social reality by privileging a particular mode of social analysis, identifying key casual storylines inhabited by virtuous and villainous characters, and providing clear normative assessments and prescriptions.

Six Faces devotes one chapter to each of its six dominant narratives: establishment (emphasizing economic growth and conflict-reduction), left-wing populist (emphasizing inequality and self-interested domestic elites), right-wing populist (emphasizing traditional cultural and economic losses), corporate power (emphasizing the exploitative legal and economic agency of multinational corporations), geo-economic (emphasizing national competition around US-China affairs), and global threats (emphasizing the risks of interconnection in producing climate change and spreading viral contagions).

For each they openly disavow normative evaluation, opting to emphasize “its power in public discourse and in policy formation.” (P. 14.) Moreover, to facilitate this diagnostic aim they highlight earnest exemplars to a “present charitable and coherent version.” (P. 14.) The specific contours of each narrative closely hew to popular understandings, following the book’s desire to understand each narrative as articulated and translated into the public sphere.

In many ways, while the title of the book signals a grounding in these six typologies, Roberts and Lamp use these typologies as preface to the analytical work of the last seven chapters which are closer to the heart of their underlying motivations. Part III, “Working with Globalization Narratives,” explores how these narratives operate in the much messier practical domains of political contestation and bargaining. Here they seek to show how their earlier dispassionate diagnosis enables a better understanding of how specific actors opportunistically modulate their use of discrete narratives, how overlaps in narratives lead to potential common solutions for specific issues, and how trade-offs in values generate tension within and among narratives. Part IV, “From the Cube to the Kaleidoscope,” includes three chapters which attempt to demonstrate the general utility of their particular methodology as a more effective starting point for global problem solving.

Some challenges to such a project are unavoidable. It attempts to create productive ideal types for analyzing a level of sociological complexity akin to the Weberian gambit of reducing legal traditions to only four modalities. As such, many readers and subsequent reviewers will have critiques as to the accuracy and sufficiency of their “six faces.” I think most will immediately point to the lack of genuine divergence between the “left wing-populist” and “corporate power” faces. Their “geo-economic” and “global threats” narratives already begin to incorporate multiple elements of, and adherents to, the other four narratives. They do devote their twelfth chapter, “Blind Spots and Biases,” to acknowledging that their narratives are primarily about debates concerning (economic) globalization in the West and cataloguing some of the many permutations that exist in non-Western countries—the majority of which are far more critical about the nature of the post-World War II international order.

I do not think Roberts and Lamp would necessarily reject any of these critiques or see them as damning for their larger ambition. They presuppose that there is inherent value in the process itself of diagnosing these narratives in order to find practical solutions. Here again, their aim does not rest on the perfection of their typologies. In this, many reading Six Faces will struggle with the fact that they do not assess the myriad of empirical and causal claims their six narratives encompass—or even their internal consistency. Given the frequent assumption of disingenuity ascribed to many who publicly claim fidelity to each narrative, some may feel frustrated they do not point out the self-serving interest of many of their loudest proponents.

Yet, this openness to critique is grounded in the true face of Roberts and Lamp’s project: a call for cognitive empathy. Their diagnosis is not so much meant to fully capture the complexity of globalization discourses, but to demonstrate a way of engaging with globalization’s challenges that does not simply surrender to cynicism. Admittedly, in my life as a comparative scholar, I have long struggled with ways to argue for constructive scholarly engagement with issues that are over-determined by social forces and intellectual presumptions seemingly beyond reason—including penning appeals to pragmatism that I am often not fully convinced by. Lamp and Roberts notably conclude the book with the hope for “good-faith debates” which evokes a genre of disinterested cosmopolitanism whose empathy can facilitate pragmatic problem-solving by identifying opportunistic alliances and coalitions informed by an analytically kaleidoscopic holism.

There is no way to ultimately judge what is, in essence, a methodological claim without examining its output. Herein, Six Faces is most effective when it delves into those areas almost universally seen as key issues in globalization but which have witnessed little constructive problem-solving to date. As a scholar who works on both US-China relations and labor, it was notable that these were the dominant examples to which they returned throughout Six Faces for illustrating the merits of their approach.

Most directly, the entire “geo-economic” narrative is explored through the US-China lens, and China also recurs as a major example regarding anti-trust regulation and trade law. Here Roberts and Lamp explicate what many others caught within specific paradigms miss. China provokes so much fracture among existing narratives because its recent development upends common assumptions both economic and political. The core presumption of modernization theory that economic growth would invariably lead to political liberalization, among myriad other claims regarding law and development, has faced clear empirical rebuttal in the resilience of China and other authoritarian regimes. Yet, such presumptions were used to drive popular support for the dominant “establishment view” of globalization. Such rebuttal has thus shattered alliances on economic globalization which once successfully cross-cut party lines in almost every democracy. Notably, it is not until China emerges in the book that the word “democracy” makes its first and limited appearance.

While less addressed in Six Faces, a parallel disruption has occurred in the “left-wing populist” and “corporate power” camps regarding China. Many committed to such agendas traditionally adhered to a US-centric anti-imperialism and have demonstrated a dogged inability to develop any critical position on Chinese authoritarianism and its thoroughgoing, if only increasing, repression of labor and other civil society interests. Again, while Six Faces is generally focused on disruptions stemming from Western, and here primarily US, engagement with China, it is notable that a parallel fragmentation of narratives regarding globalization is roiling China, prompting massive regulatory experiments and rhetorical reframings. In tandem, China has demonstrated the degree to which the now almost universal use of “national security” as “the exception that swallows the rule” can be used to paper over a country’s lack of an ideologically coherent response to globalization’s challenges. (P. 130.)

Similarly, the term “worker” or “workers” appears hundreds of times throughout Six Faces and is refracted through all of the narratives presented. Once again, the function of the diagnosis is to highlight rather than hide tensions. Roberts and Lamp take head on the problems within “left-wing populist” and “corporate power” camps in addressing the lack of specific convergence between workers in high-income and low-income nations. Much of this derives from what Ayelet Shachar has termed the “birthright lottery” in which international solidarity breaks on the shores of nationalist identity and wage differentials without a principled stance on the democratic control of production.

In working through these examples, Six Faces does demonstrate how the cognitive empathy they argue for enables a diagnostic utility that can sometimes elude those fervently set in a particular narrative frame. Readers open to the book’s contributions in this regard are then left to consider whether such pragmatic empathy will in fact facilitate real world problem solving. Here perhaps Robert and Lamp’s shared background as trade lawyers makes its presence most felt. They deploy Venn diagrams recurrently in the book, which map discursive overlaps for various narratives. One can imagine earnest trade representatives sitting across the bargaining table studying these diagrams to find a way to make further progress and ultimately reach an agreement palatable to their political sponsors. By contrast, the term “social movement” only appears in the book once, and many social movement scholars and activists seeking legislative change wholeheartedly emphasize the importance of “rally[ing] the troops” with clear narratives over “win[ing] anyone over” with reasoned analytic discourse. (P. 30.)

As such, consider their statement that “the protection of no other set of individual rights in developing countries enjoys as much support among politicians in developed countries as the protection of labor rights.” (P. 209.) This claim is most sustainable in the specific context of some current trade negotiations, in which promoting labor rights is an asserted position of high-income countries. Yet, such a claim will instinctively shock the conscience of most labor scholars, who have seen these same countries undermine labor rights in other political arenas over the last five decades internationally as well as domestically. Such disjuncture also emphasizes their own acknowledgement that not all narratives have equal power, which helps explain why their sections on climate change confront almost entirely “establishment” solutions in practice to date. Admittedly, such issues of narratives, power, and politics are impossible for any form of pragmatism or empathy to fully transcend,

Within this struggle, it is in the concluding chapter where Six Faces’s project reveals its best version of itself as a principled defense of intellectual integrity. Yes, if you have certain substantive personal ends, there is much practicality in attempting to contribute to social change by rallying around effective narratives suffused with angels and villains—and none of which is buoyed by critical self-reflection. The “geo-economic” struggle between the US and China has led both countries to consistently cast almost every new policy by reference to the other, which often does rally domestic political support. But such rhetoric runs directly away from the question of how these two countries came to become so deeply economically integrated in the first place if they didn’t share the presumptions Six Faces outlines about trade and economic/political development. In the concrete context of workers’ well-being, there seems little new energy to truly democratize economic life in the United States or in the Chinese Communist Party’s campaigns around “common prosperity” which leave the political subordination of workers untouched. The type of cognitive empathy that Roberts and Lamp argue for would disrupt such practices by showing how playing to existing narratives excuses uncomfortable commonalities with one’s “villains” and turns focus away from internal contradictions.

In a final ode to Isaiah Berlin, Six Faces takes its place among many pragmatists of the past. It presents a vision of modern academic practice rooted in integrative thinking, diverse teams, and value pluralism. It leaves one to consider if Berlin’s foxes who know many things can be ever be properly equipped to successfully battle academic and political hedgehogs who know only one Dunning-Kruger amenable truth. And it seems an anthropological truism evidenced time and time again that humans crave simplicity in their meaning-making at odds with the kaleidoscopic academic “dragonfly eyes” Roberts and Lamp hope to develop. What they are really asking then is whether a truly cosmopolitan discourse on globalization is possible, and whether a tangible role exists for intellectual integrity in a hyper-polarized world. Six Faces is a worthy read for its many provocations, and centrally so for any self-critical academic looking to make sense of their place in era seemingly dead-set on fueling cynicism at every turn.

Cite as: Jedidiah Kroncke, Empathy as Pragmatism: Facing the Challenges of Globalization in a Polarized World, JOTWELL (March 25, 2022) (reviewing Anthea Roberts and Nicolas Lamp, Six Faces of Globalization: Who Wins, Who Loses, and Why It Matters (2021)), https://intl.jotwell.com/empathy-as-pragmatism-facing-the-challenges-of-globalization-in-a-polarized-world/.

A Tribute That Turns One Inside-Out

Comparative and international law scholarship places legal doctrines in context. Whether that context is helpful often depends upon one’s own disciplinary and normative commitments. Professor Fei-Hsien Wang’s Pirates and Publishers: A Social History of Copyright in Modern China challenges the view that a historic distrust of property rights undermines current efforts to import intellectual property law to the People’s Republic of China. The historical context she narrates is the main reason why this book is one I like lots. Even more pleasing is how Professor Wang’s book provides a new comparative and international context for understanding the possibilities for interdisciplinary scholarship itself.

Interdisciplinary context can fail, we are reminded, when it obscures the evolution of legal institutions. Professors Shyamkrishna Balganesh and Taisu Zhang make this point in their review of Professor Wang’s book by bringing to the foreground a critique from legal internalism. As they explain, legal internalism “refers to the internal point of view that regular participants in a legal practice usually develop toward it that sees it as normative, epistemologically self-contained, and logically coherent.”1 According to Balganesh and Zhang, Professor Wang’s social history of copyright overemphasizes social context and does not pay adequate attention to the evolving logic of legal doctrines, courts, and legal institutions. The Balganesh-Zhang review is also a work I like lots. In fact, the interplay of the book and the review increases my enjoyment of each, highlighting the importance of both the external contexts for and internal logic of copyright.2

Professor Wang’s social history supports the argument that a notion of copyright did exist in China, at least from 1890-1950. Rather than grounded in a normative commitment to individual property rights, copyright during this period was about the practices of book publishers and a commitment to the spread of learning, particularly from Japan and European countries. Book publishers in late 19th century Beijing and Shanghai included copyright imprints in books, following the model used by Japanese publishers of the Meiji Empire. The imprinted word banquan, the equivalent of copyright, means “printing blocks.” It is also distinct from the term zhuzoquan, meaning author’s rights. Delving further into Wang’s account of Chinese practices and social contexts before 1950, we can see the impetus to expand scientific and philosophic learning from both ancient and modern texts driving the book publishing industries. In addition, specific authors pushed their own claims against plagiarists who distributed unauthorized copies of their books. Social practices were attuned to writing, thinking, and publishing. Copyright had a social life that was enriched by a literary culture. As society became dominated by the party and the state, the priorities of publishing and writing were subsumed by a collectivist ideology hostile to individualistic inquiry. This shifting social context explains the loss of appeal of copyright in contemporary times.

Wang’s account of copyright as a species of social history, however, ignores copyright as a legal phenomenon. She offers no details of copyright lawyers or judges or courts. She reveals no legislative history, no presentation of political battles, and no mention of free speech concerns, as one might find in other copyright histories.3 For a reader of Wang’s book, copyright law appears in the shadows with only its social emanations placed on display. For Balganesh and Zhang, the legal core remains unnourishing for students and scholars of how copyright’s legality takes shape. This criticism perhaps is unfair to level against the intellectual product of a historian: Professor Wang is an assistant professor of history at IU-Bloomington, and she is affiliated with the Centre for History and Economics at the University of Cambridge, where she earned her doctorate. But to forget the legalities of copyright, the copyright law mindset, is to ignore the way in which copyright scholars and policymakers become enmeshed into their own inner logic or debate. Perhaps one runs the risk of naturalizing copyright as something that is a social convention, readily accepted like the rules of etiquette or collegiality, rather than the product of lawerly actors. Copyright isn’t a brooding omnipresence in the social landscape. It is the plaything of legal bureaucrats, whether in Beijing, Washington, D.C., Geneva or their emissaries in the various judiciaries.

But these doubts are what makes me like engaging with Wang and these two critics. What are we talking about when we talk about copyright? Does copyright have a life separate from copyright law? Is law just a veil after all? Are doctrinal debates peripheral to the social, cultural, and personal meaning of copyright? If the answers to the last two questions are yes, we run the risk of making lawyers of all stripes, as legislators, as judges, as professors, mere shadow actors. That can’t be true, right? At the same time, it may seem odd to view copyright (or any legal category) as purely social. The technical rules seem to inform how nonlawyers talk about the phenomenon even if the rules do not shine. Think about how often terms like fair use, or copying, or reverse engineering, show themselves in popular culture or everyday language. They seem to have a meaning that can be traced back to the legalese of the federal reporters or the United States Code, even as the translation into ordinary English distorts or dampens their legal meaning.

Reading Wang and Balganesh-Zhang together may pose a false choice of being either inside or outside the law. Logically, one might reason: you have to choose since you cannot be in both places at once. However, one might be reminded about that quote about the life of the law, logic, and experience. But Holmes’ line is poorly framed in terms of the life of the law, rather than in terms of life itself. After all, law only matters if it makes life in some sense, to some ultimately unmeasurable degree, better. When we think of copyright,4 we should ask not about the life of the law, but about the lives of artists, of creators, of readers, of storytellers, of visionaries, of influencers, of prognosticators, of agitators, of people in whatever role, parental, professional, intellectual, striving for creative release. The narrow categories of social history or of law (or of political economy, or of media studies, or of critical theory) are meaningful only to the extent they shed light on how we can live better, not whether we seek solace inside or outside a particular cathedral.

And reminding me about these points is why I like lots this book, this book review, and comparative and international law.

  1. Shyamkrishna Balganesh & Taisu Zhang, Legal Internalism in Modern Copyright, 134 Harvard L. Rev. 1066, 1071 (2021).
  2. The Balganesh-Zhang review discusses two other books subject to the internalist critique: Will Slauter, Who Owns the News?: A History of Copyright (2019)(presenting the political economy of news) and Monika Dommann, Authors and Apparatus: A Media History of Copyright (2019)(presenting a techno-social analysis of media). I have read the Slauter book and started the Dommann book and do like them lots too. But I have only so much love to share in the confines of a jot. Furthermore, the internalist critique is most salient for the Wang book for reasons the Harvard book review gets into. Therefore, I focus my attention on that one of the trilogy. Plus, I am very much interested in the social history of China.
  3. Compare with, for example, Benjamin Kaplan, An Unhurried View of Copyright (1967), or Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates (2010).
  4. Any legal field, but this is just one little jot.
Cite as: Shubha Ghosh, A Tribute That Turns One Inside-Out, JOTWELL (February 15, 2022) (reviewing Fei-Hsien Wang, Pirates and Publishers: A Social History of Copyright in Modern China (2019)), https://intl.jotwell.com/a-tribute-that-turns-one-inside-out/.

The Italian Contribution to Comparative Studies of Multilevel Governance

Erika Arban, Giuseppe Martinico, & Francesco Palermo, Federalism and Constitutional Law: The Italian Contribution to Comparative Regionalism (2021).

Italy is one of the most fascinating case-studies of both modern state-formation and the management of territorial pluralism in the world. Massimo d’Azeglio, Prime Minister of Sardinia from 1849 to 1852, announced after territorial unification in the nineteenth century – “We have made Italy. Now we must make Italians.” This elegant aphorism encapsulates the entire discourse and practice of classical modernist nation-state building that has underpinned the creation of the post-World War II global order. Italy itself established its contemporary constitutional model of territorial pluralism in this period and has since evolved in intriguingly asymmetric, incremental, pragmatic, and imperfect ways. For other democratic countries where territorial pluralism is the foundation of the state and the central fact of politics and public law, the study of almost every dimension of the Italian model pays rich dividends. However, much of the more sophisticated literature on Italian constitutional politics has so far not been in English, the lingua franca of comparative constitutional studies. As a result, even though a major proportion of the post-Cold War era’s intensification of transitional constitution-making has concerned the resolution of territorial conflicts, it is fair to say the Italian experience has featured very little as a useful comparator.

The recent collection of essays edited by Erika Arban, Giuseppe Martinico, and Francesco Palermo, Federalism and Constitutional Law: The Italian Contribution to Comparative Regionalism, fills this longstanding lacuna with aplomb. In addition to the three editors, the book brings together a wide range of law and politics expertise to describe, analyse, and critique the historical, cultural, normative, and institutional dimensions of Italian regionalism. The structure allows for comprehensive coverage, and each chapter yields engaging discussions replete with detail and nuance, yet without overwhelming unfamiliar readers with esoterica. The book meets and exceeds the editors’ aims of situating Italy within the field of comparative federalism and regionalism studies, by identifying both exportable strengths as well as cautionary lessons and by bringing law and politics into conversation in expounding the Italian experience.

The opening chapter with its compact yet detailed account of the constitutional history of Italian regionalism will be welcomed by anyone wanting to understand the context before delving into its institutional and normative characteristics. It introduces towering figures like Gaspare Ambrosini, comparable to his great contemporary Sir Ivor Jennings in the English-speaking world as a scholar-practitioner with a decisive influence on the course of history. In the other chapters, the unique institutional and normative features of the Italian model, such as its complex asymmetry, and its conception of subsidiarity and loyal cooperation, are explained extremely well. Individual chapters within the volume consider aspects that are otherwise read in disciplinary silos: for example, discussion of the political party system or inter-governmental relations, often the concern of political scientists only, sits alongside analyses of adjudication and constitutional jurisprudence, traditionally the domain of lawyers.

In all these ways the book succeeds admirably as an introduction to Italian regionalism for researchers, teachers, and students, as well as the general reader. It will serve as an excellent resource for any university course on comparative federalism, or even a self-standing short course on Italian regionalism. And it will be invaluable to constitution-making practitioners in the field, especially those who grapple with complex cases of asymmetric territorial pluralism which need a federal-type constitutional structure, but where, for various reasons, full or explicit federation might also be resisted.

The final chapter draws out some useful comparative lessons from the Italian model. In addition to these, two interrelated matters might be further pointed out. The first is that the project is located squarely within the terms and frameworks of the existing discourse of comparative federalism, which, from the days of Wheare and Watts, has been primarily concerned with debates about formal institutional classification. Within these terms, the book advances fascinating discussions about how and why the Italian case is a species of regionalism within the federal genus. This exegesis will no doubt interest those to whom the taxonomic debate is important (and there are still sound reasons why it is important).

But it can fairly also be argued that this is something of a cul-de-sac for both the practice and the theory of comparative federalism and constitutional law. In the world of practice, both in federal governance and federal constitution-making, formalist debates are often an artificial luxury. More consequentially, in deeply divided societies, meanings of formalist models have a tendency to get over-simplified and over-determined in the heated scrimmage of political claims and counter-claims and then instrumentalised as partisan weapons between antagonistic groups. Perhaps a lesson of Italian regionalism is that avoiding the unitary/federal dichotomy might sometimes be useful, this avoidance in fact aiding the possibilities of discrete formal classification for non-binary models. But the more important paradox thrown up by the experiences in deeply divided societies is that, by highlighting the performative salience of classifications, they also demonstrate the definite limits to the utility of classification.

One way of resolving this otiose problem is to reorient the focus of analysis from the institutional form of federal government to the underpinning constitutional theory of federalism. The problem with the classificatory method is that in fixating so heavily on institutional shapes and forms of federal-type arrangements, it leaves largely unexplored and unchallenged the metaconstitutional principles on which the modern constitutional state itself rests. Those modernist principles are predicated on a unitary logic of centralisation and homogenisation, and are, especially, monistic on the collective identity of the demos and essentialist on the question of sovereignty. This is not a satisfactory or even an adequate analytical and normative toolbox with which to approach territorially plural polities or to account for their constitutional praxis. Thus we need to understand federal constitutionalism as a unique process, categorically distinct from non-federal constitutionalism. Constitutionalism is the process by which political power is translated into legal authority. Federal constitutionalism is about how that process takes place in states in which their fundamental internal territorial pluralism is both the foundational political fact and the metaconstitutional normative imperative. Only if we understand the relationship between federalism and constitutionalism in this way can we provide a full account of how federal constitutionalism deals with each core task and subject of constitutional democracy in its own way.

Throughout Arban, Martinico, and Palermo’s volume, these tensions crop up with tantalising frequency but without focused attention. Perhaps a separate theoretical chapter might have been dedicated to exploring these issues. But this is less a criticism of the book, and more a suggestion for how we can engage with the stellar introductory work done by the contributors to this volume. They have succeeded in telling an engaging story about Italian regionalism and made a compelling case why it should be on the centre-stage of comparative studies.

Cite as: Asanga Welikala, The Italian Contribution to Comparative Studies of Multilevel Governance, JOTWELL (January 17, 2022) (reviewing Erika Arban, Giuseppe Martinico, & Francesco Palermo, Federalism and Constitutional Law: The Italian Contribution to Comparative Regionalism (2021)), https://intl.jotwell.com/the-italian-contribution-to-comparative-studies-of-multilevel-governance/.

Gender, Populism, and the Constitution

Partly catalyzed by the #MeToo movement, there has been a renewed and re-energized interest in the intersection of law and gender in the past couple of years. Legal scholars, including critical scholars on gender, have long worked to critique discriminatory aspects of law, and women’s rights advocates have tirelessly sought to bring about greater gender equality for all around the world. Law and gender not only highlights abuses of power and crimes against women and other marginalized sexual groups but also asks how gender discrimination continues to hamper the development of women. And there are increasing calls from academics, policy-makers, and rights advocates for greater constitutionalization of gender equality. This renewed focus is to be welcome, in my view. Our conversations on law and gender should permeate all aspects in which law regulates society, and vice-versa.

One reenergized area of debate is a new orientation to gender and two other interrelated phenomena – populism and nationalism. In The Personal Is Political: The Feminist Critique of Liberalism and the Challenge of Right-Wing Populism, Gila Stopler takes on this important topic in an impressive and thought-provoking manner. She points out that the devotion of liberalism to structural claims of public-private, which continue to pervade how constitutional law is perceived, has now allowed “right-wing populism” to gain influence in several countries, with deleterious impact on the rights of women as well as that of other minorities. She places the blame on liberalism’s influence over constitutional design and discourse, critiquing Rawls’ political liberalism, primarily, and multiculturalism, secondarily, to reflect upon “structural and theoretical flaws within liberalism.”

Stopler builds upon existing feminist critique, most notably that of Susan Orkin’s, that the public-private divide obscured the politics of the oppression of women by relegating matters concerning gender into the ‘private’ sphere. Stopler thus argues that this liberal disregard of the feminist critique of the “deceptive nature” of the public-private distinction, which she says results in a refusal to intervene in the private, non-political sphere, has allowed the flourishing of prejudices and ideologies that are now sustaining right-wing populism and its attacks on the liberal state. The liberal state, in her account, is unable to counter illiberal and often discriminatory views because it has always neglected the private sphere. In other words, for her, essentially, the liberal state is hoist on its own petard.

Stopler’s article appears in an ICON debate, which includes several response articles that thoughtfully engage with her ideas. Among them, Marcela Prieto Rudolphy questions whether the problem lies with the theoretical structure of political liberalism (“PL”) in the first place. As she puts it, “the problem isn’t that PL tolerates illiberal ideas (as I have argued, it doesn’t) but that it is a theory for a society that hardly exists today—if it has ever existed.” As she further explains, as “PL relies on an idealized version of society, it is in some ways unresponsive to the real world, where unreasonable views exist and there is widespread disagreement about justice itself.” In other words, “PL’s flaw is that the achievement and maintenance of an overlapping consensus about justice are unrealistic possibilities in actual societies.”

Clearly, the debate about Rawls’ work is one that has occupied a large segment of scholarship on political theory and, to a smaller extent, constitutional theory. Political liberalism remains a cornerstone of scholarly debate on how religious diversity could be accommodated within a secular state. However, beyond the critique of Rawls and the over-idealization tendencies of theory, these current debates point to the need for greater attention to uncover embedded assumptions within constitutional law and its foundational components that themselves reproduce patriarchal structures and patterns of marginalization. Even while liberalism’s focus on the centrality of the individual, of human dignity, and of a limited constitutional state remain crucial values for today’s modern societies, its flaws have always been its insistence on a neutrality that cannot bring about the ‘glue’ for society and therefore leaves a vacuum for other more comprehensive doctrines to take hold of social imagination, first privately and then publicly. Indeed, at the end of the day, the current debate on gender, constitutionalism, nationalism, and populism must cause us to ask the question even more persistently—does the emperor have no clothes?

Stopler’s article has to be read as being situated within a scholarly movement that has cast new light on law and gender as scholars continue to unravel embedded assumptions in constitutionalism and related political concepts. For instance, in her short note on “Gendered nationalism and constitutionalism”, Ruth Rubio-Marín draws new attention to Yuval-Davis’ 1998 work on Gender and Nation, specifically the distinctions she draws between nationalist ideologies on citizenship that revolves around the Staatnation (specific states and territories), the Kulturnation (specific cultures or religions), and the Volknation (specific origin of the people and its continuation into the future). As Rubio-Marín points out, each of these nationalist ideologies intersect in real life, and “often translate to a denial or severe limitation of women’s rights and autonomy, as well as those of sexual minorities.” Other related work includes Chang, Loper, Malagodi, and Rubio-Marin’s forthcoming book on Gender, Sexuality and Constitutionalism in Asia, drawing attention for the first time in a sustained and systematic manner the intersection of law and gender in the region. This new wave of constitutionalism and gender scholarship is timely, not only for reinvigorating existing debates on law and gender, but also in putting deserved attention on emerging issues in law and gender. These works should reinforce a core feminist claim that the division between the personal and the political is arbitrary and simply cannot be sustained, and push scholars to develop new intellectual frames to better understand and navigate the relationship between law and gender.

Cite as: Jaclyn Neo, Gender, Populism, and the Constitution, JOTWELL (December 9, 2021) (reviewing Gila Stopler, The Personal Is Political: The Feminist Critique of Liberalism and the Challenge of Right-Wing Populism, 19 Intl. J. of Const. L. (2021)), https://intl.jotwell.com/gender-populism-and-the-constitution/.

Reconceptualizing Constitutional Remedies

In his brilliant new book, The Collapse of Constitutional Remedies, Aziz Huq tells the tale of two eras for constitutional remedies in the US: a mid-century moment in which the Supreme Court created a new, expansive remedial architecture, and a late-century moment of remedial retrenchment. In the mid-twentieth century, Huq notes, the Court developed a “comprehensive” and “robust” four-part remedial architecture, involving injunctions, habeas relief, damages and the exclusion of evidence. (Pp. 87-97.) From the 1970’s onwards, the Court began to hollow out the force of these remedies, by erecting a range of barriers to their availability, including the need to show an “obvious wrong”, various immunity doctrines and evidentiary barriers. (Pp. 5-6, 103-32.)  Huq also notes the way in which this retrenchment has occurred selectively, along two different ‘tracks’1: one track, involving structural challenges based on federalism and separation of powers principles, has largely seen the availability of constitutional remedies hold steady; and another track, involving individuals’ claims to protection from state violence, has witnessed a large-scale retreat. (Pp. 16, 134.)

Huq further notes the immense consequences of this selective retreat: the continued availability of remedies in structural cases has made it harder to advance social state objectives or preserve the infrastructural state, whereas the retreat of remedies in other cases has made it harder to challenge the despotic state. (Pp. 15-16.) In America today, as in the pre and post-Civil War era, the despotic state also bears disproportionately on the poor and racial minorities. Failing to curb the despotic state, therefore, is part of why we see a current crisis of racial injustice and violence in America. Another part is failing to uphold and enable the infrastructural state to enact the programs and regulations necessary to achieve racial and economic justice. (P. 8.)

Lest this sound dry, or academic, rest assured that Huq tells this tale – of two remedial paths – with enormous pith and pathos. The book is written in an accessible trade-press style (and if you have ever taken a federal courts class and struggled with the intricacies of section 1983 remedies or habeas relief, you will know what a feat that is). And it has a truly engaging narrative arc: the tale of two remedial paths is told through the lens of real litigants, with moving stories, which Huq presents with customary literary flair. This is not just a book about federal courts and constitutional history. It is a story about how the Constitution and federal courts have failed the likes of Lula Brewer, Alexander Baxter and Sergio Adrián Hernández Güereca – black, homeless and Hispanic petitioners who have been harmed by agents of the despotic state but received no remedy from the courts.

Huq also provides a compelling explanation for why this tale has unfolded: it is a story, he tells us, of a relatively thin “framework like” constitution2 that does not put flesh on the bones of Art III, and what federal justice requires. This has also allowed for the flesh to be filled in in quite different ways over time, in ways that reflect the values of Reconstruction (the mid-century expansive remedial turn) and also the Founding (the early republic and late-20th century era of remedial retreat). Partisan politics and ideology, and the turn by the Republican party against the federal courts, also played a large role, along with bipartisan notions of institutional loyalty and docket-management on the part of Democrat-appointed judges. (Pp. 11-13.) Underlying all of this, Huq suggests, is also a misconceived notion of judicial independence and institutional role.

Perhaps the most interesting part of the book, however, is the suggestion by Huq that American economic and racial progressives should not be reading this story as one where the end is already written. Federal courts, Huq tells us, are not (yet at least) worth giving up on as potential instruments for progressive change, and/or constraints on the despotic state.

This is especially noteworthy at the current political moment, when the White House Commission on the Supreme Court is debating whether and how further to limit the powers and finality of the Supreme Court.3 And this, of course, reflects a widely shared belief on the left in the US that federal courts are beyond redemption as a source of progressive change, and instead likely to be a meaningful obstacle to such change.

Not so, or not so fast, says Huq. A new, or renewed, more expansive conception of constitutional remedies could offer an important tool for achieving racial and economic justice – by creating an additional check on current practices of racial and economic violence. (Pp. 14, 153.)

One wants, of course, to believe that Huq is right. Huq himself nods to the optimism, rather than University of Chicago-style realism, implicit in this argument. And one suspects it is indeed optimistic, though there is no telling what 4-8 years of a Democratic presidency could do to the composition and constitutional role conception of federal judges in the US. For this to occur, however, I suspect that one important coda to Huq’s own coda is needed. For the Supreme Court to realize the full promise of its mid-century remedial architecture, it will need to revisit the decision it made (by the thinnest of margins) to adopt a narrow view of positive rights under the Due Process and Equal Protection clauses of the 14th Amendment.

A world in which the Court checks the despotic state is undoubtedly one in which it adopts a broad approach to constitutional remedies. But it is also one in which the Court reverses its decision in Dandridge4 and De Shaney5 and endorses the idea of both positive and negative constitutionalism as a core part of America’s post-Reconstruction constitutional model.

There have been others at the University of Chicago, among other places, who have made the case for that kind of positive turn within the US.6 But connecting that work to this important new book by Huq seems necessary to realize the full promise of either project – as a serious academic project that aims to help create a more equal, less despotic America.

  1. On the idea of multiple remedial tracks, see especially the important new book on remedies by Kent Roach, Remedies for Human Rights Violations: A Two-Track Approach to Supra-National and National Law (2021).
  2. Rosalind Dixon, Constitutional Drafting and Distrust, 13 Int’l J. Const. L. 819 (2015); Rosalind Dixon, Constitutional Carve-Outs, 37 Oxford J. Legal Stud. 276 (2017); Rosalind Dixon and David Landau, Tiered Constitutional Design, 86 Geo. Wash. L. Rev. 438 (2018). See also, Mila Versteeg and Emily Zackin, Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design, 110 Am. Political Sci. Rev. 657 (2016).
  3. Presidential Commission on the Supreme Court of the United States, The White House.
  4. Dandridge v. Williams, 397 U.S. 471 (1970).
  5. DeShaney v. Winnebago County, 489 U.S. 189 (1989).
  6. Cass R. Sunstein, The Partial Constitution (1993). See also, Adrienne Stone and Lael Weis, Positive and Negative Constitutionalism and the Limits of Universalism: A Review Essay, __ Oxford J. Legal Stud. __ (Apr. 21, 2021).
Cite as: Rosalind Dixon, Reconceptualizing Constitutional Remedies, JOTWELL (November 11, 2021) (reviewing Aziz Z. Huq, The Collapse of Constitutional Remedies (2021)), https://intl.jotwell.com/reconceptualizing-constitutional-remedies/.

Non-refoulement as a Peremptory Norm of International Law (Jus Cogens) in the Age of COVID-19

Evan J. Criddle & Even Fox-Decent, The Authority of International Refugee Law, 62 Wm. & Mary L. Rev. 1067 (2021).

The Evans have done it again. After redefining the legal and analytical concept of jus cogens (peremptory norms of international law) as a species of fiduciary duty the state owes to human beings within its control in A Fiduciary Theory of Jus Cogens, Evan J. Criddle and Evan Fox-Decent have taken their novel thinking to tackle the extraordinarily urgent issue of non-refoulement under international law in the midst of the COVID-19 pandemic in their recent article The Authority of International Refugee Law.

Non-refoulement is the international legal duty to refrain from returning refugees to territories where they face a serious risk of persecution. While international law firmly places the duty of non-refoulement into the jus cogens camp in some scenarios, such as where the refugee faces a substantial risk of torture, positive and customary law are more ambivalent in other areas. For example, the Convention Relating to the Status of Refugees explicitly allows states to deny protection on a case-by-case basis when “there are reasonable grounds for regarding [a particular refugee] as a danger to the security of the country.” This hesitancy to formally and absolutely prohibit non-refoulement in positive international law raises serious obstacles for Criddle and Fox-Decent’s argument that non-refoulement should be considered a jus cogens norm, for a key feature of such norms is that they are non-derogable. Similarly, the very practice they seek to criticize—refoulement based on COVID-19—reflects a degree of state practice, undercutting the formation of customary international law.

Here it is important to emphasize a few points. One, the phenomenon that international law prohibits some practice that states nonetheless engage in is a familiar one to international lawyers. Thus, there is a clear prohibition on torture, yet states continue to torture. But this noncompliance does not necessarily invalidate the prohibition on torture in much the same way that driving above the speed limit does not invalidate the speed limit. Two, as I read Criddle and Fox-Decent, they are arguing for the emergence of non-refoulement as a jus cogens norm. And in this respect, I take their project to be one of principally normative engagement. Three, and relatedly, for better or worse international law often exhibits a symbiosis between what the law is and what the law should be, creating a recursive feedback loop that contributes to the formation and contours of a particular norm.

Against this backdrop, a theory of a norm can take on immense practical significance if used to justify the existence and exercise of that norm. And it is in this respect Criddle and Fox-Decent excel. For they have developed an innovative and persuasive approach based on what they call a “fiduciary” and “dual commissions” theory of international refugee law. Under these theories a state is both a fiduciary to those over whom it exercises control, and a fiduciary to the international legal system at large. Importantly, its duty to the international legal system often (always?) coincides with the multilateral practice of other states. Thus, while territorial sovereignty still reigns supreme, states also have fiduciary duties to regulate trans-border phenomena like the global environment that touches all of their territories. Should one state unilaterally claim authority to do so, it would signal a breakdown in the international legal system of coequal states. Similarly, should one state claim to regulate only its own environment, but do so in a way as to create substantial spillover effects on other states, the “system” similarly would weaken. Applying this way of thinking to refugee law, violating the duty of non-refoulement looks way worse. For it renders human beings—otherwise subjects of international law—illegal, or, perhaps more accurately, outside the law based on their very existence, relegating them to a state of nature. In other words, it punches holes in international law, making it look less like a coherent and comprehensive system of rules to regulate global behavior and more like a piece of Swiss cheese.

Cite as: Anthony Colangelo, Non-refoulement as a Peremptory Norm of International Law (Jus Cogens) in the Age of COVID-19, JOTWELL (October 13, 2021) (reviewing Evan J. Criddle & Even Fox-Decent, The Authority of International Refugee Law, 62 Wm. & Mary L. Rev. 1067 (2021)), https://intl.jotwell.com/non-refoulement-as-a-peremptory-norm-of-international-law-jus-cogens-in-the-age-of-covid-19/.

Empire’s Residue

Paul F. Scott, The Privy Council and the constitutional legacies of Empire, 71 N. Ireland Legal Q. 261 (2020).

On July 1, 1997, sovereignty over Hong Kong was transferred from the United Kingdom to the People’s Republic of China, and, so the story goes, the sun finally set on the British Empire. Except it didn’t. As Paul Scott masterfully explicates in The Privy Council and the constitutional legacies of Empire, the Empire endures, both in terms of ongoing control over Overseas Territories unlikely to become independent, and in the retention of formal mechanisms of constitutional governance which hide this imperial residue from the domestic constitutional order.

Scott’s article is part of a symposium edition of the Northern Ireland Legal Quarterly, entitled “The Constitutional Legacies of Empire.” This broader project is of a piece with comparative and global constitutionalism’s increased—and important—focus on colonialism and decolonization. For example, in an editorial in March 2020, the editors of Global Constitutionalism charged constitutional scholars to “decolonise constitutional law” through “a commitment to analyzing the colonial legacy in constitutional formation, the contemporary rights regime, and international public law, from both theoretical and historical perspectives.” Scott turns a critical eye on the British constitution itself and calls for a reckoning “with the legacy, and indeed the ongoing reality, of the British Empire.”

He opens by describing the territorial residue: fourteen Overseas Territories (OTs) whose position in the UK’s constitutional order both “exclude[s] them from constitutional consciousness,” and even “mislead[s] as to their constitutional status.” These OTs are without representation in the Westminster Parliament, which nevertheless has ultimate legislative authority over them, and though they are “‘neither foreign nor Commonwealth,’” they are under the purview of the Foreign and Commonwealth Office (a successor to the Colonial Office), not the Home Office.

This imperial twilight is managed by the Privy Council, a “black hole”, in Scott’s words, of the British constitution and the reason that “the UK is able to remain an Empire without being required to acknowledge that fact directly within its constitutional order.” Scott paints a picture of an institution shrouded in mystery—one that works a subterfuge, allowing the UK to maintain a domestic and an imperial constitution simultaneously. And he bemoans the lack of critical attention to the Privy Council paid by domestic constitutional lawyers, arguing that scholars must engage with its anomalies in order to confront, in turn, both the UK’s imperial past and its “ambiguous imperial present.”

The Privy Council has ancient roots; its earliest incarnation, the Curia Regis, emerged in the aftermath of the Norman invasion. The Privy Council advises the Sovereign, and there are over 600 Privy Counsellors, including members of the Royal family. As Scott notes, the list on the Privy Council’s website provides no information about individual members of the Council, making it almost “impossible” to figure out “who many of these people are, and why they have been appointed to the Council” without extensive research. Although some Commonwealth countries appear to be represented, there is no obviously “direct or systematic representation” of the OTs.

The Privy Council has both a judicial and legislative role in governing the OTs, presenting what Scott calls a “substantive continuity” with the imperial constitution. The Judicial Committee of the Privy Council is well known, and its ongoing jurisdiction as the court of final appeal for a number of Commonwealth countries (both monarchies and republics), is an obvious link to Britain’s past Empire. But it retains jurisdiction over the OTs, and, as Scott points out, in some years, “such cases represent[] more than a third of those decided by the JCPC.” Scott argues that if these cases arising from the OTs were to be handled by the UK Supreme Court instead (as presumably would befit a domestic jurisdiction), it might force an acknowledgment of the “ongoing imperial nature of the UK.” It is possible that OT cases could account for upwards of 10 percent of the UK Supreme Court’s work in a given year and would receive the publicity attending decisions of that Court. (The JCPC for example does not have its own Twitter feed.)

The legislative role of the Privy Council also “disguises the substantive reality whereby the government of the UK legislates . . . for a residual empire.” Scott explains that, although Parliament retains a formal power to legislate, in practice law is made for the OTs through the Queen in Council. In operation, this is done by the Lord President of the Council and three other members (current Government ministers who are themselves Privy Counsellors) in the presence of the Queen. Scott criticizes the two primary forms of legislation promulgated as diverging in important ways from expectations under the domestic constitution. Statutory orders in council do not receive “the normal processes” of parliamentary scrutiny, and prerogative orders in council can escape publication and come into force without being seen by Parliament at all. Scott is careful to note that the number of prerogative orders in council is likely small, but quantifying their existence is complicated by inaccessibility. And the underlying problems of principle remain: a lack of democratic accountability and even a threat to “basic standards of the rule of law.”

Scott’s thoughtful study makes an important contribution to the study of constitutionalism and empire. In shining a light onto the Privy Council, Scott argues that it provides “cover for practices that the domestic constitution would rightly reject.” He does not take the final step in his article, but it seems a short distance to the claim that the imperial residue works to undermine the core democratic commitments of the British constitution itself. In this Scott echoes the work of American scholars confronting U.S. constitutional history. In both cases, an old but still-relevant story: power corrupts, and imperial power perverts.

Cite as: Erin F. Delaney, Empire’s Residue, JOTWELL (September 9, 2021) (reviewing Paul F. Scott, The Privy Council and the constitutional legacies of Empire, 71 N. Ireland Legal Q. 261 (2020)), https://intl.jotwell.com/empires-residue/.