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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)),

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)),

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)),

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)),

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)),

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)),

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),

How to Save Democracy?

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

The last year has seen the publication of a range of impressive books on the decline of democracy worldwide.1 One of the absolute best among these is undoubtedly the new book by Aziz Huq and Tom Ginsburg, How to Save a Constitutional Democracy.

The book has four key strengths, some common to other books in this genre – but which few others can claim to have in as full a measure.

First, the book offers an extremely careful and thoughtful set of definitions of the core concepts in current debates about democracy and its future –concepts such as ‘democracy’ and ‘liberal democracy’, ‘populism’ and ‘democratic erosion’. Their definition of democratic erosion is especially helpful. They suggest it involves a “process of incremental but ultimately still substantial, decay in the three basic predicates of democracy – competitive elections, liberal rights to speech and association and the rule of law,” across different institutions, against a baseline of some ingoing level of democracy. (P. 43-4.) Typically, they suggest it also does not involve descent into full-scale authoritarianism, as opposed to a more hybrid regime type. Definitional clarity of this kind is critical to productive scholarly and public debate on these issues: without it, we risk talking past each other about both the causes and consequences of the phenomena we are observing in so many countries worldwide.

Second, the book provides a truly global survey of the health of democracy in various countries, using a mix of qualitative and quantitative yardsticks. But Huq and Ginsburg are not only writing for a comparative constitutional audience: their work aims to reach a broad public and academic audience in the US, as well as elsewhere. Because of this, their work makes an important contribution to mainstreaming what Ran Hirschl has recently called the field of “comparative constitutional studies” – i.e., the study of global constitutions from an interdisciplinary and empirical perspective. By drawing on both historical and contemporary, but comparative, case studies, Huq and Ginsburg derive two key conditions under which democracy is most likely to experience erosion – i.e. conditions of ‘charismatic populism’ and ‘partisan degradation.’ (Pp. 78-116.) They then use these criteria to analyse the current state of democracy in the US.

Using this lens suggests that constitutional democracy in the US may be even more in peril than many astute observers realize: the threats posed by President Trump’s charismatic populist style are well known (even if their quite spooky parallels to the actions of charismatic populists in Venezuela, Argentina or Thailand are not). But the signs of partisan degradation Huq and Ginsburg identify – i.e., the widespread use of partisan gerrymandering by both parties; the dramatic shift to the right by the Republican party; and the announcement, by Senate Republican leader Mitch McConnell in 2010, that the core strategic aim of the Republican Party from then on was to make President Obama a one-term president – are arguably less widely noticed as signs of potential democratic erosion.2 In other words, they suggest that democratic erosion in the US both predates and goes much broader than the actions of the Trump administration; and a comparative lens helps us see that more clearly.

Third, the book provides a sophisticated interdisciplinary account of the legal and political conditions necessary both to sustain and erode democracy. For instance, it notes the importance of repeated interactions between (relatively evenly matched) political parties in sustaining norms of democratic competition (Pp. 83-84) – a key insight of the political science literature in this area in recent years. And it notes the central role of interest groups – for both better and worse – in shaping democratic politics (P. 137), and thus a central tool of democratic erosion will often be an attack on interest groups and/or civil society.

Similarly, the book draws on prior work by Ginsburg on constitutional endurance to suggest that an important predictor of democratic erosion will be prior experiences of non-democratic government – i.e., that “crisis begets crisis.” (P. 137.) Based on this, Huq and Ginsburg suggest that one important source of protection for democracy in the US is that it has not generally experienced such crises – and thus “there is no subset of interest groups [in the US] that can confidently predict from past experience that it, and others, will gain from democracy’s death.” (P. 137.)

Fourth, the book engages in an extremely broad and sophisticated exploration of the potential design strengths and weaknesses of the US Constitution as a potential bulwark against democratic erosion, and what other design options or alternatives might be available in this context. Ginsburg and Huq are also admirably balanced and nuanced in their approach to various design choices in this context. Article V of the U.S. Constitution, they note, “receives a good deal of criticism from liberal legal scholars” for the obstacles it creates to formal constitutional change in the US, but equally, this unusual degree of amendment rigidity creates an important bulwark against one common means of democratic erosion – i.e. what David Landau has called “abusive” constitutional amendment. Yet the bulwark is partial not absolute: it could be overcome by sufficiently mobilized majorities, and more readily, by informal modes of constitutional change. (Pp. 139-41.) Similarly, they note the virtues to the Supreme Court’s flexible approach to executive power: it has reduced the risk of emergency rule, and thus potentially path-dependent forms of interruption in constitutional democratic rule, in the US, but at the price of meaningful protections for individual rights in a range of circumstances. (P. 137.)

In other contexts, they are more straightforwardly critical of the potential design flaws in the US constitutional model: the 25th Amendment, for example, contains no obvious deadlock-breaking mechanism (such as an early election). And one only needs to think of recent debates in the US about the use of the 25th Amendment to be reminded of the potential magnitude of this omission.

Huq and Ginsburg also draw attention to ways in which other countries may in fact have stronger constitutional protections against democratic erosion – e.g., written and entrenched (rather than conventional) controls of the administrative state, entrenched provision for a ‘network’ of independent institutions, including an electoral commission, entrenched provision for the role of the opposition in parliament, and constitutional courts with greater motivation (not just capacity) to engage in what Samuel Issacharoff has called a form of ‘democratic hedging’. They likewise suggest that parliamentary and semi-presidential systems may provide greater protection against democratic erosion than pure presidential models – in part by relieving stress on presidential term-limits as a key design solution – and that regional and international norms and institutions can provide a useful additional check against erosion.

Huq and Ginsburg offer some useful insights as to the potential strengths and weaknesses of these different solutions. But for the most part, they do not turn the same critical gaze to the effectiveness of these design ‘solutions’ as they do to the current US constitutional model. Nor do they explore the potential dangers, or limits, to how these models might work in a context of radical political polarization and highly resourced and sophisticated interest-group politics (i.e., the US itself). Indeed, these options are mentioned in only an exploratory way, largely as a reminder to US readers that “our existing institutional vocabulary does not exhaust the possibilities of liberal constitutional democracy.” (P. 204.)

As a comparative scholar, this is the one area in which I would fault the book – or at least have encouraged Huq and Ginsburg to engage in a longer comparative diversion. But I also see how multiple comparative diversions of this kind could have undermined one of the key ambitions of the book, which was to reach a broader public audience. And this ambition is itself one of the leading reasons to admire the book. It is extremely careful and evidence-based and yet it seeks to reach a broader audience – at a time when, as Huq and Ginsburg themselves note, a great deal of current political debate explicitly rejects the value of arguments and evidence of this kind. (Pp. 231-32.)

As both a scholar, and someone committed to democracy in its constitutional liberal form, I can also only hope that it is Huq and Ginsburg, and not their opponents, who ultimately prevail in this battle of ideas. It may be that saving democracy depends on it.

  1. See, e.g., Steven Levitsky & Daniel Ziblatt, How Democracies Die (2018); Yascha Mounk, The People vs. Democracy: Why Our Freedom Is in Danger and How to Save It (2018); David Runciman, How Democracy Ends (2018); Cass R. Sunstein, Can It Happen Here? Authoritarianism in America (2018); Mark A. Graber, Sanford Levinson and Mark Tushnet, Constitutional Democracy in Crisis? (2018).
  2. One important exception is the work of Steven Levitsky and Daniel Ziblatt, How Democracies Die (2018).
Cite as: Rosalind Dixon, How to Save Democracy?, JOTWELL (October 30, 2018) (reviewing Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (2018)),

All’s Well That Ends Well, Sort of

Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2018).

“There ought to be a law about that” is a common response to circumstances we don’t like. But outlawing war? We might as well legislate against the flu. A new book called The Internationalists: How a Radical Plan to Outlaw War Remade the World authored by Professors Oona A. Hathaway and Scott J. Shapiro of Yale Law School shows how the endless cycle of war and peace prior to World War I has given way to a New World Order, post World War II. Today, they argue, war is no longer legitimate and might does not make right. But this New World Order comes at a cost as civil wars and internal disputes challenge established national borders (forged themselves by war). Has one form of aggression just replaced another?

Hathaway and Shapiro have produced a readable and provocative book that I like because of its extensive coverage over three self-contained but connected parts. The first part is about Hugo Grotius and the background that led to his groundbreaking book on international law and war. Or perhaps, his book is actually about war as international law, as conquest became the preferred means of resolving conflict among nations. A 17th Century naval battle in the Straits of Singapore between the Dutch and the Portuguese was the catalyst for a legal dispute that Grotius infamously resolved by laying down principles for just war. But these principles expanded beyond their boundaries to support the use of aggression to resolve a wide range of disputes, going beyond the limits of “just war.” Grotius, as Hathaway and Shapiro tell us, laid the foundations for a world order which recognized the nation’s right of conquest, a license to kill within skirmishes, and gunboat diplomacy. Within this order, nations had to remain impartial or take sides; there was no room for intervention through sanctions or mediation. Invariably, nation-states would be forced into conflicts, such as border disputes, debt defaults, or assassinations, with resulting regional or global escalation.  World War I was the culmination of the international order that Grotius wrought.

Hathaway and Shapiro’s first part gives way to a second part in which they take the reader down the path to the Briand-Kellogg Pact and the many trials that followed. Salmon Levinson, a corporate lawyer from Chicago, took inspiration from events after World War I, as well as the pragmatism of John Dewey, and heralded the cause of banning war. Working with Senator Philander Knox and Henry Cabot Lodge, Levinson tried but ultimately failed in his efforts when Congress refused to ratify the League of Nations. The Briand-Kellogg Pact emerged from these ashes a decade later, setting the stage for global debates over the role of aggression and the final resolution in the principles emerging from the Nuremberg Trials.

This second part is my favorite of the three. It is dense and textured, traversing the emergence of Japan as an imperial power fueled by that nation’s discovery of Grotius as a scholar and the heated academic politics between Carl Schmitt and Hans Kelsen in Weimar, then Nazi, Germany. Hathaway and Shapiro provide a multi-country narrative, both synchronic and diachronic, that describes a transition from the Old World Order of Grotius to a New World Order, that is perhaps taking shape.

Historical and legal transitions bring intellectual debates to life and show what possibilities are available to the contemporary reader. Hathaway and Shapiro capture a world in flux, retaining the bad features of the Old Order while lacking the full maturity of the New. World War II and the years leading up to it were an unsettling, disturbing and violent period. Hathaway and Shapiro capture the familiar anxiety but filtered through the legal and ideological debates of those chaotic years. This second part reads like an engrossing thriller, even though the ending has been thoroughly spoiled by our knowledge of history.

The third part reads like a cold denouement coming in the wake of a gut-wrenching climax. We get to see how the principles of the Old World Order fared, revealed like the “Where are they now?” photos of a stellar academic class. But their fates are less well settled. The New World Order is one in which conquest is illegal, aggression is a crime, sanctions are permitted, and agreements among nations cannot be coerced.  I was reminded of Albert Hirshmann’s description of doux commerce from his “The Passions and the Interests.” Peace reigns and the relations among nations are founded on consensual exchange.

But Hathaway and Shapiro show how this resolution is far from sweet. Ethnic tensions, civil strife, and violence within the nation-state have replaced hostilities between nations (although those still persist). Grotius’ justifications for war and the resulting incorporation of territories within nations has set the stage for a new type of localized warfare. The authors argue that this new style of aggression is the price for the New World Order. The third book provides a somber ending to The Internationalists, one wrapped in statistical studies by the authors and their capable research assistants. They teach us that the size of nations has shrunk as measured by size of territories since World War II. The resulting nations have become more unstable as internal conflict is not suppressed by larger entities, such as the Soviet Union or the Ottoman Empire. Outcasting through the use of sanctions is the new instrument for conflict resolution with successful resolution resting on economic and political power rather than military might. What the third part of the book demonstrates is that war, as justified by Grotius,  led to territorial expansion and imperialism with the resulting patina of stability that centralized power of the Old World Order. The New World Order lacks this stability. These findings are not surprising.

The title for this jot is an allusion to Leo Tolstoy’s War & Peace, a novel about Napoleon’s failed conquest of Russia, whose working title was “All’s Well That End’s Well.” Would the conclusion of Hathaway and Shapiro’s book support Tolstoy’s original choice of title? Or has the cycle of war and peace taken just another form? Conquest, as Grotius would have us understand it, laid the unintended path to imperialism and totalitarianism. Even with the patterns of violence and oppression we see today, the New World Order, according to Hathaway and Shapiro, is perhaps on the arc to equality and peaceful coexistence among nations. However, with the endless patterns of violence, the end of that rainbow seems to dissipate out into the horizon. Nonetheless, the path may be the only feasible alternative to the violence underlying the Old World Order.

An unsatisfying ending on its face, the third part sets a challenge for the next generation of internationalists, those who seek to ban all forms of aggression and replace it with reasoned exchange among peoples across and within borders. It will take more than a treaty for this next generation to thrive.

Cite as: Shubha Ghosh, All’s Well That Ends Well, Sort of, JOTWELL (October 1, 2018) (reviewing Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2018)),

Power to the People(s): Referendums in Deeply Divided Societies

Referendums have been used to decide divisive constitutional questions in polities around the world.  In some cases, the relevant divisions run deeply along ethnic and religious fault-lines and the polities have long histories of conflict. Joanne McEvoy’s 2018 article, Letting ‘The People(s)’ Decide: Peace Referendums and Power-Sharing Settlements, makes a significant contribution to the emerging literature on “peace referendums.” In what follows, I will highlight this contribution and argue that her text merits close attention from comparative constitutional law scholars.

At the outset of the article, McEvoy identifies her aims and underlines the high stakes involved when referendums are held in societies riven by conflict. She writes:

This article assesses the use of the referendum to legitimate power-sharing democracy in deeply divided societies. If we lack a full understanding of the dynamics of referendum design in transitions to power-sharing, minority groups may find themselves in a polity they perceive to be both illegitimate and in favour of the majority.  Further intracommunal antagonism and the risk of recurring conflict could threaten a fragile political bargain reached by elites.  Exploring the value of referendums is therefore important for the stability and legitimacy of peace-building. (P. 865.)

McEvoy situates her text in the extensive literature on power-sharing arrangements.

Authors, including most notably Lijphart, have argued that power-sharing arises when minority groups secure interests that were previously vulnerable in a system that they had regarded as illegitimate. (P. 866.) Elites often play a key role in negotiating these kinds of compromises, and according to McEvoy, this role has drawn scholarly scrutiny since the self-interest of elites may diverge from the interests of the populations whom they purport to represent. (P. 867.) McEvoy further argues that a central role for elites in deciding the shape of political institutions sits uneasily with understandings of legitimacy in the academic writing on state-building and social contract theory. For the former, popular participation assists in “building a sense of political community.” (P. 867)1 And for those writing in the tradition of Locke, the consent of the governed is essential to the continuing legitimacy of political power. (P. 867.) McEvoy notes that the use of referendums to address significant political questions has been widely justified for these reasons. (P. 867.) Yet, she argues, the academic literature has paid insufficient attention to the question of what role groups in deeply divided societies should play in constitutional referendums about power-sharing agreements. (P. 868.)

According to McEvoy, some of the literature on power-sharing suggests that in such a context, a “simple majority threshold risks privileging the majority, thereby excluding the minority community and ultimately failing to legitimate the deal reached by elites.” (P. 868.) Other writing suggests that alternatives to a simple majority rule carry their own challenges. Supermajority rules give rise to difficult questions about how to set the threshold in a way that accurately reflects the amount of minority support necessary to legitimate an outcome. (P. 869.) Rules requiring concurrent majorities in the groups that are party to the central social divisions in a polity risk entrenching the relevant markers of identity, exacerbating the divisions, and jeopardizing minorities whose identities are not so entrenched. (P. 869.)

McEvoy examines these claims in light of two case studies. Her first example, the Northern Ireland referendum on the Good Friday Agreement of 19982, challenges the claim that a simple majority rule will necessarily prejudice the interests of a minority.  The referendum eschewed a rule requiring concurrent majorities in the unionist and nationalist communities and opted for a simple majority threshold.  According to McEvoy, this threshold was sufficient to legitimize the outcome, in part because the substance of the agreement “sufficiently addressed the groups’ self-determination aspirations,” (P. 871) and its continuing success hinges on policy-makers’ continuing “to foster support for the new constitutional order.” (P. 872.)

The second case study involved a 2005 referendum in Iraq3 ratifying a constitution that included asymmetrical federalism and power-sharing arrangements in federal institutions. (P. 872.) The referendum required a majority of voters across Iraq and the support of two-thirds of voters in three or more governorates. (P. 872.) Because three governorates were located in Kurdistan, McEvoy argues, the Kurdish minority were effectively given a veto power. (P. 873.) McEvoy concludes that because the preferences of the Sunni and Shi’a Arabs were “not fully accommodated in the rushed, imposed constitution-making process of the CPA (Coalition Provisional Authority),” (P. 873) the referendum could not “fully legitimate” the constitution, despite the fact that the qualified majority referendum rules were “arguably appropriate.” (P. 874)

In my view, the signal contribution of McEvoy’s article lies in the fact that it challenges assumptions about various kinds of rules in constitutional referendums about power-sharing arrangements in deeply divided societies. What lessons might her analysis hold for the field of comparative constitutional law? This question is pertinent because significant comparative work is being done by constitutional law scholars on constitutional change generally, and referendums, in particular. Perhaps understandably, constitutional law professors tend to concentrate their analyses on explicit rules. McEvoy’s article suggests that such a focus may lead one to underestimate the role that informal processes can play in determining the success or failure of constitutional reforms. When constitutional law scholars do shift their attention away from the standard positive law sources, they can rely somewhat uncritically on social scientists’ work, particularly when a consensus in a field has formed. McEvoy’s article suggests that we should be attentive to the specificities of constitutional contexts, particularly when they challenge received academic wisdom.

  1. Quoting Joanne Wallis, Constitution Making During State Building 315 (2014).
  2. For a first-person, participant account of this referendum see, George J Mitchell, Toward Peace in Northern Ireland, 22 Fordham Int’l LJ 1136 (1999).
  3. For an overview, see Makau Mutua, The Iraq Paradox: Minority and Group Rights in a Viable Constitution, 54 Buff L Rev 927 (2006).
Cite as: Hoi Kong, Power to the People(s): Referendums in Deeply Divided Societies, JOTWELL (September 4, 2018) (reviewing Joanne McEvoy, Letting "The People(s)" Decide: Peace Referendums and Power-Sharing Settlements, 25 Democratization 864 (2018)),