Apr 11, 2025 Katharine Young
It is surely an understatement to observe that global constitutionalism and human rights are under considerable pressure. Central to many of the up-to-the-minute (post-January 2025) challenges, is the age-old question of the role of the apex or supranational court in rights protection. Research into how courts and tribunals react, and should react, to the ever-expanding list of human rights concerns that reach them, is vital, whether one’s concern is human rights inflation, juristocracy, rising authoritarianism, or all three. The default position of judicial restraint and its corollary, deference, often lacks nuance.
Cora Chan’s new book, Deference in Human Rights Adjudication, offers a tightly reasoned and extensive engagement with the premise of deference. Drawing on her home jurisdiction, Hong Kong, Cora Chan also engages cases and commentary from Canada, Ireland, Israel, New Zealand and the United Kingdom. With careful analysis of several lines of caselaw, more analytical than strictly comparative, she presents a grid of guidance notes on the various postures that courts have adopted, in dealing with deference and human rights. The findings are telling, not just for the jurisdictions in question, but for the international and regional human rights tribunals now faced with questions of their own appropriate role, and for other courts supervising the extensive bills of rights and expressly justiciable complaints that have come with the last wave of constitution making and amendment.
For institutionally minded scholars, the challenge is to find the sweet spot between, on the one hand, judicial abdication, where excessive deference means that human rights, although notionally enforceable, become sham, and on the other, judicial usurpation, where the refusal of deference can turn courts into juristocratic governors, without accountability or proper competence. This sweet spot becomes all the more complicated when the complaints raised in human rights adjudication apply to such distinctive issues as challenges to police treatment, cuts in social benefits, hostility to sexual minorities, disavowal of gender equality claims, and concerns in electoral integrity, all under the header of “national human rights complaints.” In addition, we must add newer concerns that cut against prior ideas of “negative” and “positive” rights or obligations, including increasingly litigated economic and social rights, and even existential questions such as climate change or artificial intelligence, all leveraging (justiciable) human rights claims.
There is, of course, an extensive literature on the separation of powers and new models of rights. Professor Chan engages widely with it in order to devise a spectrum of judicial models, that range loosely on an axis of judicial formalism, from what she calls algorithmic (the most formalist), to stable, elastic and finally amorphic (the least formalist) judicial models. These models are drawn from an array of devices which includes lowering the standard of review, lowering the standard of proof, reversing the burden of proof, or granting a deferential remedy. The depiction of these four models can be read as expanding from previous typologies of strong versus weak judicial review, or the interbranch and extrabranch interactions of dialogic, experimental or catalytic review.
One particularly notable focus of the book is how courts are now dealing with question of evidence and the burden of proof in human rights adjudication. This question raises concerns about judicial deference, particularly given new trends in empowered executives, reconfigured public servants, and the broader issues of epistemic polarization, and its anti-science, anti-fact, populist undertones. One might be concerned that this vital issue becomes too flattened in a typology of judicial models, and that for instance an algorithm on proof might cut differently from an algorithm on remedy, particularly under polycentric or politically unpopular standpoints. Yet it is an important issue to draw out and Professor Chan gives it careful treatment.
Another is the irony that deference has grown just as another “global” model for human rights adjudication has increased: the use of proportionality analysis. Again, a huge and important literature canvases the use of proportionality reasoning, as a structured inquiry that has travelled across civil law and common law divides. The irony is, as Professor Chan notes, that deference may inspire or rationalize restraint, while proportionality analysis does something else altogether, allowing judges to inquire closely into very modes of reasoning used by the executive and legislative branches, seeking to ensure that decisions are made as necessary but also in the manner “least restrictive” to human rights. As my own work on the positive obligations raised by human rights suggests (admittedly in different judicial contexts, such as the South African Constitutional Court and the Committee on Economic, Social and Cultural Rights), less structured doctrines like reasonableness can avoid the forced and sometimes extreme choice between strict deference (or use of parallel doctrines, such as the margin of appreciation) and proportionality analysis, but introduce additional issues.
Professor Chan’s book takes as a given the background challenge of the separation of powers, and the fact that the utopianism of human rights and the possibility of their adjudication presents a constant threat of undermining or overthrowing this settlement. Her committed analysis of the “doctrinal superstructure of public law” (P. 8), as she puts it, delves deeply into justifications and instantiations of deference. Our inherited models, from Montesquieu to Madison and beyond, have been considerably updated by comparative insight, particularly from “Global South” courts and institutions, and from jurisdictions in which collaboration between the branches seems both tenable and attractive, or in which “fourth branch” institutions play distinctive roles for human rights. I would point to the other “superstructures,” beyond doctrine (especially the old-fashioned economic one), that inevitably warrant inclusion. In this context, deference, even of variegated intensity, seems a limited tool. But to such developments, the engagement with frameworks from a number of jurisdictions, a number of courts, and a number of human rights concerns, greatly informs our understanding. This book justifies a close reading.
Mar 11, 2025 Mathilde Cohen
Do you teach comparative law? If so, rejoice—your job just got a lot easier and more engaging with the publication of Comparative Law: Introduction to a Critical Practice by Fernanda Nicola and Günter Frankenberg. And if you don’t teach it, here’s a perfect excuse to dive into comparative legal studies: this textbook covers a broad range of topics, from property and administrative law to contracts, torts, and family law.
What sets it apart is its bold, critical approach to traditional comparative methodologies. It doesn’t just compare legal systems; it challenges the very assumptions, biases, and power structures embedded in legal comparison. The volume critiques comparative law as a discipline while also celebrating its richness, presenting its histories, internal debates, and evolution through a multi-disciplinary lens that draws on anthropology, feminist theory, political science, postcolonial theory, and sociology.
This book serves as both an accessible introduction for newcomers and a stimulating challenge for seasoned comparatists. The introduction provides a historical overview of comparative law’s development, while questioning the belief that the practice can be neutral or objective. Nicola and Frankenberg argue that the selection of what to compare—and how—is shaped by the scholar’s values and perspectives. They urge readers to critically examine the epistemological foundations of comparative law, pointing out issues like Eurocentrism, the dominance of certain legal traditions (e.g., common law or civil law), and the marginalization of non-“Western” legal systems. Throughout, they emphasize that legal frameworks are shaped by political, social, and economic contexts, positioning comparative law as a tool for social critique and a means of questioning entrenched legal norms.
Each chapter focuses on a key legal issue—such as breach of contract, wrongful life claims, or same-sex marriage—framed by guiding questions that stimulate reflection. For example, the constitutional law chapter includes thought-provoking prompts such as, “Read the constitution of your country! For which audiences and purposes do you think it was written?” or “Compare court rulings on Muslim veiling. How do courts translate veiling conflicts into a collision of rights?” The structure of each chapter follows a three-part framework (or “turns”): first, a presentation of mainstream comparative law approaches (from functionalism to legal transplants); second, a critical examination of these approaches, focusing on ideology, culture, and history; and third, practical insights that explore legal comparison through a political spectrum, non-legal layers, and legal transfers across time and space.
A standout feature of the book is its emphasis on the “critical” in critical comparative law. Nicola and Frankenberg invite readers to ask not just how legal systems differ, but why certain legal forms are privileged over others. This inquiry extends beyond global comparisons to include internal dynamics within legal systems, such as gender, race, caste, and class. For example, the book explores how comparative law has historically been used to reinforce colonialism and patriarchy, with family law long considered an “exception to the field” due to its deep cultural roots and association with intimacy. Yet, as the authors argue, critical approaches reveal significant historical injustices, particularly when they uncover how family law “intertwines with economic policy.”
Despite addressing complex theoretical issues, Nicola and Frankenberg make their arguments accessible, grounding abstract ideas with case studies and real-world examples. Another major strength is the book’s inclusivity. While it engages deeply with “Western” legal traditions, it also incorporates legal systems from outside the conventional comparative legal canon, including those of Mexico, Haiti, Guatemala, Taiwan, and Tanzania, among others. These examples enrich the discussion, such as using the Tanzanian Constitution to problematize the concept of constituent power or analyzing the adoption of gun rights reforms in Latin and Central America. In sum, Comparative Law: Introduction to a Critical Practice is a groundbreaking textbook that redefines the role and scope of comparative law. By combining rigorous scholarship with a critical perspective, Nicola and Frankenberg encourage readers to consider not just how laws differ, but why those differences matter in practice. It’s an essential read for anyone seeking to understand the complexities of comparative law in the modern world.
Feb 14, 2025 Sam F. Halabi
In the wake of President Trump’s shocking announcement that he favors the U.S. “take over the Gaza Strip and…own it” and hopes to resettle the Gazan Palestinian population elsewhere, not only the global diplomatic community but also scholars of the region have been given a renewed focus on how the topic of Gaza and its people will be understood, analyzed, and treated. It is fortunate then that Ilan Pappe, long one of the most important scholars of the Israel/Palestine conflict, has provided an essential resource on the expanding discipline of Palestine Studies. Writing in the UCLA Law Review—the campus was one of the most important venues for activism related to Gaza over the course of 2023-24—Pappe not only traces the origin of Palestine Studies as it emerged through academic journals like the Journal of Palestine Studies and the Jerusalem Quarterly, but also how programs and academic chairs are now proliferating in Canada, the UK, the US and elsewhere.
Pappe’s article, Palestine Studies: An Activist Academic Field, is one I like a lot and I hope others seeking greater understanding of Palestine and Palestinian people do as well. Pappe’s story itself is fascinating—he was born in Haifa, educated at the Hebrew University, and served in the IDF before attending the University of Oxford where, like other prominent Middle Eastern historians who studied alongside Albert Hourani, he developed an approach to research that emphasized a comprehensive approach to primary and secondary sources. He eventually became a so-called “New Historian”—one of a number of Israeli academics who, working from records then newly-released from Israel’s state archives, challenged conventional narratives about the origin of the state and have argued that Israel was established through violent and orchestrated mass expulsion of Palestinians. Pappe himself writes from Exeter in a kind of self-exile, departing from the University of Haifa after advocating the boycott of Israeli cultural institutions.
In Part I of the article, Pappe traces the origins of Palestine Studies from the work of dedicated Palestinian historians first in Beirut at the Palestine Research Centre and later in Washington, D.C. at the Institute for Palestine Studies. After prominent Palestinian Professor Edward Said’s publication of Orientalism in 1978, Palestine Studies, according to Pappe, became interwoven with a wider set of interpretive and methodological movements that emphasized the examination of history, language, and culture from the perspective of the colonized, the dispossessed, and the marginal. Curricular innovations followed.
At the same time, in universities throughout the West and South America, courses focusing on Palestine have enriched the curricula of area studies, politics, and international relations. In the past, Palestine-focused modules were located in Conflict Studies or at best appeared in Middle Eastern Studies departments; at worst they were limited to Jewish and Israel Studies departments. With the emergence of dedicated institutions, programs, and courses across the globe, Palestine has become integral to scholarly discussions about decolonization, Indigenous Studies, international law, and Genocide Studies. (P. 1282.)
In Part II, Pappe turns his attention to the “Present State of the Art.” In addition to providing a succinct account of the juxtaposition of Palestine Studies with other intersectional advances in research and pedagogy, Pappe points to 2010 to 2020 as the critical decade in which Palestine Studies advanced worldwide.
He explores the interrelationships between specific disciplines and Palestine Studies: International law has been shaped by the strenuous efforts undertaken by primarily Western governments to apologize, justify, and excuse the frequent violations of international law committed against Palestinians. The role of women during episodes of Palestinian diplomacy, resistance, and advocacy has also informed Gender and Women’s Studies’ research, teaching, and curricular design. Palestine Studies, in turn, has benefited from its expanded dialogue with other disciplines. As Pappe concludes, “Palestine Studies will continue to benefit from the theoretical nuances, comparative case studies, and strategies of resistance offered by Indigenous Studies, literature, social psychology, economics, international law, transnationalism, Settler Colonial Studies, and Cultural Studies.”
Pappe also highlights the distinction Palestine Studies suffers—that it is uniquely targeted for its content, its speakers, and its factual and historical basis. Palestine and Palestinians “remain the only focus of inquiry consistently undermined by governments and media in the West, as well as by mainstream academia” he writes. (P. 1281.) Pappe anticipates that like analogous but more forgiven movements and historical episodes, Palestine Studies will emerge from these antagonistic efforts as an essential, ever-expanded discipline.
In Part III, Pappe meditates about the future, about the need for a closer alignment between scholarship advanced by Palestine Studies and the actual, objective reality of Palestinians and Palestine on the ground. Since October 2023, Pappe argues, there has been a more intense campaign to silence scholars of Palestine Studies and to negatively depict its researchers, study subjects, and conclusions. But in this sense, as his eponymous title suggests, the discipline itself has always been and must necessarily be activist. As the aggressive and contradictory orders issue from the White House affecting more and more territories and more and more vulnerable populations, Palestine Studies will become, Pappe argues, an essential field for “confronting dehumanization and racism, connecting people and their struggles, and building a future in which knowledge serves the aims of justice and liberation.” (P. 1291.)
Oct 30, 2024 Rosalind Dixon
In Unsealed Covers: A Decade of the Constitution, the Courts and the State, Gautam Bhatia provides a fascinating account of constitutional decision-making in India between 2014 and 2023. Building on his contributions to the Indian Constitutional Law and Philosophy Blog, Bhatia’s book offers a real-time account of cases involving the most pressing constitutional controversies in India during this period, and situates those cases in broader historical and institutional context.
Bhatia is a scholar but also an advocate, blogger, and close-up observer of Indian courts. Some might worry that this would lead to a lack of perspective on the relevant decisions and their longer-term influence on Indian constitutional law. But Bhatia is nothing if not far-sighted. He puts all the decisions discussed in the book in their broader historical context and offers insightful predictions about the future trajectory of constitutional law in a range of areas where the current doctrine is unsettled. For instance, he notes the split in lower courts on issues such as marital rape and restrictions on the wearing of the hijab (Pp. 113-31), suggesting that these issues will need to be resolved by the Court in the mid-term, and predicting—or at least hoping—that they will be resolved in favour of freedom and equality. He likewise explores current tensions in the Court’s jurisprudence relating to equality, and the battle between a substantive equality and exceptions-based view of provisions such as Art 16 of the Indian Constitution, before calling for a return to the more substantive vision articulated by the Supreme Court of India in State of Kerala v NM Thomas (1976) 2 SCC 310 (Pp. 133-34, 165.)
Attention to judicial dissensus of this kind is just one way in which Bhatia situates Indian constitutional law as part of a broader form of legal and political contestation. Bhatia also explores tensions between the courts and political branches, and argues that contestation—both within and between institutions—can be valuable for constitutionalism.
In Unsealed Covers, Bhatia lays out a compelling normative vision of democratic constitutionalism: one based on a commitment to constitutional contestation, to explicit engagement with constitutional values, and to the importance of legal context. The values Bhatia sets out are of universal appeal; he argues for a vision of democratic constitutionalism that “celebrates the existence of plural ways of living, and privileges human dignity and freedom” while also advancing commitments to equality and anti-subordination (Pp. xx-xxii.) If anything, Bhatia leaves the reader wanting to hear more about this vision of constitutionalism.
This normative framework also inflects the choices Bhatia makes in selecting issues and decisions for inclusion in the book. The Supreme Court of India produces a vast body of jurisprudence, and an important part of the contribution Unsealed Covers makes is via its choice of key judgments and developments in the relevant period. Bhatia makes these choices with a commitment to democracy, contestation, constitutional values and attention to context squarely in mind. For example, in the context of the Unlawful Activities (Prevention) Act 1967, Bhatia first notes Supreme Court precedent imposing stringent limits on access to bail for those accused under the Act, but then in subsequent chapters selects cases for discussion that serve to nuance and temper the decision, including the development of a narrower approach to the conduct that triggers application of the Act and the notion that allegations under the Act must be “individualized, factual and particularistic” (P. 27.) Similarly, Bhatia highlights not only the seminal decision of the Supreme Court in Puttaswamy v Union of India (2017) 10 SCC 1, but goes on to highlight the decisions of the Court applying that case which involve a willingness to impose substantial limits on the power of the state to override the right to privacy in the interests of a common, national identity (Pp. 101-12.)
In making these selections, Bhatia acknowledges the inherent dynamism and fragility of Indian constitutional law and values, as well as the way in which basic values are under threat today and the subject of regression and advances in the decisions of the Court. Bhatia does not shy away from addressing the most serious controversies surrounding the Court, including allegations of sexual harassment against a former Chief Justice and the Court’s lack of impartiality in handling these allegations (Pp. 321-29.) Another great virtue of Unsealed Covers is its acute attention to the broader political context in which Indian constitutional law operates generally and particularly in the context of the rise of the BJP. It is also keenly alive to the possibility of what David Landau and I have labelled the risk of “abusive judicial review”, namely: judicial abstention or deference that leads to the empowerment of anti-democratic actors, or else judicial review that actively dismantles democratic guardrails. Indeed, Bhatia notes the general dangers of abstention in the context of many BJP-sponsored changes (Pp. 302-9), as well as specific forms of democratic retrogression sanctioned by Indian courts—for instance, in the context of the independence of certain “fourth branch” or “guarantor” institutions (Pp. 286-97) and in the context of Jammu and Kashmir (Pp. 261-64.)
The book is written in a highly accessible and engaging way, with a very clear purpose in mind. It aims to make constitutional law accessible to ordinary citizens or, to quote Bhatia, to “democratize” constitutional law so that it can be a sight of contestation by ordinary citizens (P. xvi.) At a time where democracy is under threat in so many countries, this aim is surely one of the most important and valuable parts of the book—and a model for scholars worldwide to emulate.
Oct 1, 2024 Hoi Kong
With Responsive Judicial Review: Democracy and Dysfunction in the Modern Age, Rosalind Dixon has made an important contribution to the literatures on judicial review and comparative constitutional law. Her argument is subtle and detailed, drawing on an extensive body of academic literature and case studies from around the world. This brief review will highlight two aspects of the argument that make the book an indispensable work: (1) its overview of relevant academic debates and (2) its original contributions to those debates.
Overview of Relevant Academic Debates
Dixon provides a concise, yet thorough, overview of a series of academic debates about judicial review. One debate focuses on the capacities of judges and courts. Dixon notes that constitutional theorists have tended towards either an “everything” or “nothing” view of judges and courts. (P. 13.) Dixon places Ronald Dworkin in the “everything” camp and describes its members as tending “to assume a heroic conception of individual judicial skill and capacity and even more ambitious view of what courts can achieve as institutions.” (P. 13.) Dixon puts Gerry Rosenberg in the “nothing” camp. She argues that according to this camp’s members, judges are “deeply unheroic in character” and courts either are “almost entirely ineffective in creating social and political change” or they make such change difficult “by adding to the perceived legitimacy of deeply flawed existing democratic constitutional structures.” (P. 13.)
A second debate that Dixon surveys is about constitutional construction, or “how best to interpret the … open-ended language of written constitutional guarantees.” (P. 25.) On one side of the debate stand originalists who argue that courts construing a constitution should “focus on the original intentions of those who wrote and ratified a constitution, or the public meaning of constitutional language.” (P. 37.) According to Dixon, originalists further argue that courts should only depart from these sources of constitutional construction and draw implications from the text when these are “strictly necessary to the proper functioning of the constitutional system as a whole.” (P. 37.) Dixon places on the other side of the debate realists and living constitutionalists. According to the realists, those who draft and ratify a constitution have diverse intentions and the public meaning of constitutional language is indeterminate. As a consequence, they argue that judges inevitably consider “social and political values and consequences” (P. 37) when constructing a constitution. Living constitutionalists argue that a constitution’s legitimacy is increased when courts engaging in constitutional construction are attentive to “contemporary community values.” (P. 38.) Moreover, the living constitutionalist argues that courts can draw implications from the constitutional text in order “to advance the overall purposes of the constitution.” (P. 38.)
A third debate surveyed by Dixon focuses on the democratic implications of judicial review. For some authors, constitutions set out an expansive set of rights and courts constructing a constitution “promote both commitments to freedom, dignity, and equality and…thicker, more substantive democratic ideals.” (P. 45, emphasis removed.) Dixon takes Dworkin to be representative of this view, noting that for him, the body of basic constitutional rights includes “notions of privacy, free movement, decisional autonomy, non-discrimination, or freedom from cruel, inhuman and degrading treatment.” (P. 45.) Dixon contrasts this expansive view of constitutional rights, and courts’ role in constructing them, with the political constitutionalists’ more constrained view of the role of courts in a democracy. Dixon notes that according to Jeremy Waldron, a prominent political constitutionalist, majority decision-making within representative legislative bodies is the “fairest and most principled way” (P. 46) of resolving reasonable disagreements about rights. Waldron notes that, by contrast, resolving these kinds of disagreements through judicial review disenfranchises citizens, as it privileges “majority voting among a small number of unelected unaccountable judges.” (P. 46, citing Waldron, The Core of the Case, P. 1353.)
Original Contribution to Academic Debates
Dixon’s overviews of the above debates are invaluable because they make the authors and their works accessible to a broad readership. Equally valuable are her original contributions to those debates. Dixon draws on the work of John Hart Ely and comparative political process theorists. She notes that according to Ely, judicial review should correct for malfunctions in the legislative process that arise (1) when laws restrict the political process in order to benefit legislative incumbents and (2) when majorities enact laws that negatively affect “discrete and insular minorities”, out of hostility to those minority groups or because the majority refuses to “recognize commonalities of interest” that they share with those groups. (P. 48.) Dixon observes that Ely’s theory has been criticized because it is focused on a relatively narrow range of democratic dysfunctions that are particular to the United States. (P. 51.) According to her, comparative political process theorists identify a more expansive range of dysfunctions that modern democracies face and that courts can respond to. Stephen Gardbaum, for instance, identifies “an important role for courts in many democracies in countering four distinct political market failures: (i) non-deliberativeness in the legislature; (ii) legislative failures to hold the executive accountable; (iii) government capture of independent institutions; and (iv) capture of the political process by special interests.” (P. 55.)
Dixon builds on the insights of Ely and modern comparative political theorists by (1) identifying three distinct risks of democratic dysfunction that courts can counter, (2) specifying how (and under what conditions) courts can counter those risks, and (3) describing risks to democracy that judicial review itself can give rise to.
Risks of Democratic Dysfunction
The three kinds of democratic dysfunction Dixon identifies are: antidemocratic monopoly power, democratic blind spots, and democratic burdens of inertia. (P. 2.) Risks of antidemocratic monopoly arise when those in power seek to “entrench their own hold on power by undermining the political process, the viability of the political opposition and/or the power of independent institutions.” (P. 72.) Democratic blind spots arise when legislators “impose[s] unintended or unanticipated limitations on constitutional protections” because they delegate the task of weighing and accommodating constitutional interests to committees that are “structured in ways that emphasize certain perspectives or interests over others.” (P. 82-83.) Dixon notes that when legislative bodies themselves do not represent the full range of perspectives, and in particular those of historically disadvantaged groups, “the legitimacy of democratic legislation itself” will be called into question. (P. 84.) Dysfunctional democratic burdens of inertia arise when a democratic system fails “to respond to the alignment between democratic majority understandings and thicker constitutional commitments.” (P. 88.) These kinds of burdens become dysfunctional when, for instance, legislatures persistently fail to respond to emerging democratic threats, such as voter suppression, and public trust is eroded as a consequence. (P. 89.)
The Role of Judicial Review in Countering Democratic Dysfunction
When Dixon turns to the role of courts in countering the above kinds of democratic dysfunction, she engages with debates about judicial review. She does so by setting out three broad principles for courts to consider when they consider whether to draw constitutional implications from a constitution. First, “[i]mplications that have limited legal support, and no real political justification will be presumptively illegitimate.” Second, “[i]mplications designed to protect the ‘minimum core’ of democracy will generally be legitimate, regardless of the degree of existing legal support for such an implication.” Third, [i]mplications designed to counter blind spots or burdens of inertia” will only be legitimate “where they enjoy some meaningful degree of legal support, or are designed to counter a serious and irreversible risk to human dignity, or systemic forms of inertia or state failure.” (P. 100.) Dixon proposes that courts give effect to these principles by calibrating the intensity of judicial review and she draws on examples from around the world to illustrate her arguments. (P. 95.)
Finally, Dixon identifies risks to democracy that judicial review itself may give rise to and she proposes ways for courts to respond to these risks. Dixon labels the first kind of risk “reverse burdens of inertia” and she stipulates that they arise when there is “(i) widespread disagreement with a court decision; (ii) disagreement that is reasonable; and (iii) an inability for legislators to give voice to that disagreement or engage in ‘dialogue’ with a court.” (P. 181.) The second, related risk is “democratic backlash” which arises when there is significant disagreement with a court, but is focused on “a form of democratic retaliation—that is, an attack on the court itself as an institution.” (P. 182.) The third risk, “democratic debilitation” arises when courts keep laws and policies in line with shifting majority expectations but in so doing “reduce[s] the incentive for legislators themselves to undertake this role” (P. 181-82.) Dixon argues that in response to these risks, courts should calibrate the scope and finality of their decision. That is, they can “reason broadly or narrowly, issue strong or weak remedies, or rely on weak or strong stare decisis.” (P. 216.) Dixon is particularly convincing when she identifies the kinds of considerations that courts should weigh when making these decisions. For instance, she notes that when courts adjudicate cases involving attacks on the minimum core of a polity’s democratic commitments, courts will consider engaging in a weak form of judicial review for pragmatic, rather than principled reasons. According to Dixon, “narrow rulings or weakened remedies, may help courts ‘to live to fight another day’ in defense of democracy, rather than further opportunities for the expression of reasonable disagreement.” (P. 217, citing Rosalind Dixon & Samuel Issacharoff, Living to Fight Another Day: Judicial Deferral in Defense of Democracy.)
I hope to have given a sense of the significance of Dixon’s arguments, but there is much more to them than I have been able to present in this very short review. Indeed, it is the scope, subtlety and depth of Responsive Judicial Review: Democracy and Dysfunction in the Modern Age that make it an essential volume in the library of anyone interested in cutting edge work on judicial review and comparative constitutional law.
Sep 2, 2024 Shubha Ghosh
As antitrust goes through a resurgence in the United States with a revived appeal to Justice Louis Brandeis, it is worth looking across the ocean to see what can be learned from competition law and policy in the European Union. Professor Pablo Ibáñez Colomo’s The New EU Competition Law provides a deep dive with much refreshing insight into the directions competition law can and should take. Professor Ibáñez Colomo is with the London School of Economics and Ordinary Member of the UK Competition Appeal Tribunal. His book is a masterwork for scholars and students of competition law and theory. It is an understatement to say I like it lots, but I certainly do and much more.
What makes EU Competition Law new is the implementation of Regulation 1/2003 which gives the European Commission, the executive arm of the Union, authority to coordinate with national competition authorities to share documents and information, paper and digital, to pursue claims of anticompetitive activities within the European market. This new development has facilitated several competition law decisions from the European Court of Justice (ECJ), the judicial arm of the Union. One important authority granted under Reg 1/2003 is the power to impose fines on companies found to be in violation of competition law. The new prong supplements traditional competition law established under sections 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Section 101 outlaws agreements and anticompetitive practices (analogous to Section One of the Sherman Act). Section 102 outlaws abusive behavior by companies with a dominant position (analogous to Section Two of the Sherman Act).
Although Ibáñez Colomo does not discuss Brexit, one implication of the UK leaving the EU is that European Competition Law does not apply within the UK; sections 101 and 102 and Reg 1/2003 would no longer apply to anticompetitive effects from the conduct of UK companies on the EU market. What effects count for these transborder transactions is not discussed but will likely be relevant for the ECJ just as extraterritoriality of antitrust law has been relevant for the US Supreme Court. See, e.g., Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023)(analyzing extraterritoriality in antitrust law case to decide extraterritoriality of trademark law).
Against this institutional background, Ibáñez Colomo documents several shifts in competition law enforcement arising from Reg 1/2003. The first shift starts from a deferential approach by the European Commission towards industry practice based on economic principles. The Commission’s deferential approach developed against a Brussels Consensus emphasizing liberal markets and minimal government intervention. Deference was consistent with a free trade, open borders perspective antithetical to interventions by national competition authorities favoring domestic markets. Ibáñez Colomo notes a shift, coincident with the passage of Reg 1/2003, towards more aggressive enforcement on a case-by-case approach. What structures the Commission’s intervention is the industry at issue in a case and the degree of concentration. Pharmaceuticals and communications receive particular scrutiny as highly concentrated markets affect consumer interests. While economic analysis is still relevant to understanding these markets, the Commission moved from a rigid economic examination of anticompetitive conduct to a more empirical based consideration of consumer harms. This shift has lessons from contemporary developments in United States antitrust law, a point Ibáñez Colomo does not raise, but to which I return later.
Two important policies inform this shift to more assertive enforcement by the Commission. The first is the use of competition law as a tool for regulating industry. Ibáñez Colomo astutely points out that competition law and direct industry regulation complement each other: Competition law polices business practices of companies in regulated industries; direct industry regulation target practices such as implementation of technology, organization of firms, and pricing. The European Commission, independent from other legal institutions such as administrative agencies, works to promote the goals of industry regulation. Examples from the energy and telecommunications sectors illustrate how the Commission punishes anticompetitive conduct. In German Electricity Wholesale Company, the Commission obtained a commitment from the three dominant German wholesale electricity providers to sell electricity generation capacity to a third party, injecting competition in the concentrated market. The Commission examined market structure in Deutsche Telekom to determine the availability of market competition in the German telephony market. This attention to market structure and firm competition parallels current debates in the United States about “breaking up” large tech companies.
The treatment of intellectual property is the second policy space where the Commission has intervened to ensure competition. Countering the position that interfering with the commercialization of intellectual property undermines innovation, Ibáñez Colomo points out that intellectual property rights attach to nonrival commodities, such as music or technical know-how that can readily be shared. Market competition may underproduce nonrival commodities but monopolies limit dissemination of the commodities and cumulative innovation. Consequently, the Commission has a role in policing markets shaped by intellectual property rights. Ibáñez Colomo documents these interventions, such as controlling concentration in the pharmaceutical industry, promoting access to copyrighted materials on cable systems, allowing competitors to use data and databases for identifying customers and developing pricing schemes for drug distribution, and more recently targeting accessing patented technologies embedded in smartphones. As with regulated industries, the Commission has developed its role as complementing another legal regime, the domain of intellectual property, with its goal of promoting innovation. Competition law also promotes innovation, the Commission’s interventions prove, and does not undermine that goal.
What are the broader lessons from this expansion of the Commission’s decisions supported by these two shifts in policies? First is the change in institutional orientation through the enactment of Regulation 1/2003. Ibáñez Colomo argues that this enactment expands the tools available to the Commission under TFEU 101 and 102. Specifically, Reg 1/2003 allows the Commission to award fines and to act proactively. While TFEU 101 and 102 required evidence of actual anticompetitive conduct, the Commission now acts proactively, permitting actions against concentrated markets and design of technologies and contracts that block competition.
The latter is the most salient for Ibáñez Colomo as illustrated by the Commission’s successful claims against Google in 2017 and 2022. In the first case, the Commission successfully challenged Google’s practices in steering customers through their search results and advertising. A fine of several million euros was imposed on Google. In the second intervention, at issue was Google’s design of its Android operating system and the integration of applications that customers were forced to purchase as a condition for using the operating system. While this case is currently on appeal, the Commission’s intervention demonstrates its power to design tech products to combat practices that harm competition and customers.
Accompanying this change in institutional orientation is a shift in the use of economics in guiding the Commission’s investigations. Ibáñez Colomo characterizes this shift as one from focusing solely on economic efficiency to including questions of redistribution. The two Google cases illustrate this change in perspective. US courts have deferred to design choices by technology companies partly as a matter of expertise, partly as a concern for interfering with efficient choices of the company. The Commission, however, was concerned with the effects on consumer choices through steering and through limiting choices in the design of the Android operating system. Consequently, the new EU competition law has led to more scrutiny of the technology sector than under United States antitrust law.
Perhaps the orientation of the FTC has itself shifted, as cases against Facebook, Amazon, Apple and Google have been filed. With allegations of consumer harm, skepticism towards efficiency defenses, and the possibility of restructuring corporate organizations, the FTC has learned lessons from the new EU competition law. We have yet to see whether these developments will flourish. Professor Ibáñez Colomo’s excellent book helps us to understand the reasons for these shifts and to witness how one jurisdiction has managed these reforms.
Jul 23, 2024 Jedidiah Kroncke
J. Benton Heath,
Economic Sanctions as Legal Ordering, __
Mich. J. of Int’l. L. __ (forthcoming, 2024), available at
SSRN (Jan. 31, 2024).
The issue of economic sanctions has become a near routine aspect of the contemporary news cycle. While many such regimes are now decades old, the enactment and modification of sanctions has become the most pervasive form of coercion practiced among modern nation-states. In his article Economic Sanctions as Legal Ordering (hereinafter ESLO), J. Benton Heath confronts the contemporary normalization of sanctions with a decisively unsettling transnational intervention: the role of early 20th century Chinese consumer boycotts in stimulating many elements now taken for granted in modern sanction regimes. In recovering the force of this neglected precedent, Heath helps us better understand what is and isn’t new about the recent intensification of economic sanctions while also providing a powerful example of the increasingly undeniable necessity of transnationalizing how we understand the origins of contemporary international legal developments.
Heath’s central argument in ESLO is that the largely civil-society-led Chinese consumer boycotts that emerged at the beginning of the 20th century were what he calls an “insurgent legal ordering.” This insurgency was organized beyond the bounds of what the modern international legal order took to be its unit of analysis—the nation-state—and over four decades its accomplishments shaped how economic warfare came to be legally disciplined. The importance of this pre-World War II provocation joins an increasingly wide range of scholarship as to how Chinese actors and arenas were far more central to the development of the modern international legal order than has been historically recognized. Heath here combines a synthesis of existing works on Chinese boycotts with original archival research into how the force of these boycotts were interpreted by the dominant architects of the evolving early 20th-century international legal order.
The broadly transnational orientation of ESLO’s analysis is almost immediately on display as it does not begin with a description of Chinese boycotts, but American labor boycotts. In Part I of the article, Heath references the United States in order to place reactions to international boycotts within the broad trend of bringing such private action under the sole legal aegis of the state—without which such actions would serve as an unduly disruption to the nation-state’s monopoly on coercive power. It is through this tie to the domestication of labor boycotts that Heath first substantiates his central concept of legal insurgency. For Heath, this has four distinguishing components: “1) a process of rulemaking for distinguishing prohibited from permitted conduct; 2) organized practices of surveillance for detecting rule violators; 3) defined sanctions for the violation of such rules; and 4) more or less institutionalized procedures for updating and revising the above rules as circumstances require.” (P. 12.)
After describing how U.S. labor boycotts both fit these criteria and were progressively subrogated to state power, in Part II Heath details how Chinese consumer boycotts first emerged in 1905 as part of a general reaction to the persistent discriminations against Chinese citizens in the U.S. surrounding the now infamous Chinese Exclusion Acts. Up through 1932, eleven boycotts would be organized by an evolving set of Chinese actors against American and then British and Japanese products. While early boycotts were less successful in material terms, over time they became an increasingly effective coercive tool against their intended targets. In turn, new boycotts involved more organized and coordinated action that more thoroughly satisfied the four self-regulatory criteria of legal insurgency. So much so that by the 1930s, their impact, Heath reveals, was an almost taken-for-granted empirical premise for debates about how the international legal order should regard civil society action. While surveying debates on China’s early 20th-century shifting consumer and nationalist identities, Heath’s empirical work shows how foreign actors interpreted these boycotts as extra-national forces.
The core link between the boycotts and contemporary sanctions regimes is established in Part III. Here Heath shows how the boycotts intersected with the intensifying presumption that states owed an enforceable duty to foreign actors/investors to protect their property from the domestic actors whom states were presumed to control—even without clear enactment in treaties or through domestic legislation. International discussion of Chinese merchant guilds, long important nodes in the boycott movements, pressed on this point especially as the emergence of single-party states complicated the dividing line between “peoples” and the “state” across the globe. These debates drew in the leading international legal theorists of the day, such as Hersch Lauterpacht and the work of the Lytton Commission, as well as the new vanguard of Chinese lawyers trained to engage with Western legal institutions, such as Wellington Koo.
Here Heath makes clear that the boycotts did not lead to any clear academic consensus on non-state coercion, but that: “While these maneuvers in scholarly debates could not finally settle the dispute over the legality of the Chinese boycotts, they did create a vocabulary for requiring states to monopolize the means of legitimate economic warfare within their territories.” (P. 55.) Moreover, this vocabulary framed one of the key transitions in modern international law—the “admission” of new, largely non-Western nations whose competency as proper nation-states was judged based on their ability to assert exactly this monopolization of coercion over their internal constituents. Thus, while Heath shows a variety of reactions to the boycotts—notably their positive invocations by pacifists—it is provoking the formation of this state-centric vocabulary in which the boycotts had their greatest impact on the evolution of economic coercion within the modern international legal order. For many critical international legal scholars, this shift is recognizable as part of the process by which powerful nations forced weaker nations to self-police to facilitate the expansion of global capitalism. A point Heath links to James Gathii’s powerful formulation of what the international legal order achieved in “developing”—or Global South—countries that did not ultimately join the communist side of the Cold War.
What makes Heath’s linkage of the Chinese boycotts to contemporary understandings of economic sanctions so provocative is how he uses legal insurgency to reframe the breakdown of its ultimately universalist presumptions. Today, the rise of unilateral sanctions—largely enacted through, or in reaction to, the actions of the United States—itself satisfies the criteria of legal insurgency exactly. Heath details how unilateral sanctions have discarded the presumption of a universal right to trade and instead foreground the prerogatives of national sovereignty cum security—enacting sanctions against state and non-state actors without recourse to general legal rationales. By the end of ESLO, Heath thus achieves the double-feat of using the Chinese boycotts to denaturalize both the evolution and modern devolution of economic sanctions within the international legal order.
In Part V, he concludes by noting the type of radical imaginations foreclosed through the rejection of the boycotts in their own time—notably Chinese scholar Zhou Wei’s fully juridified world of global sanctions and English scholar Thomas Baty’s fully post-statist regime of economic coercion. He notes how legally protean arguments about economic coercion were during this time, less circumscribed by the doctrinal demarcations of international economic organization under scrutiny today.
Cognizant of past ethnocentric Western interpretations of Chinese law, Heath is transparent that his argument is exactly that— a study of Western interpretations of the Chinese boycotts and their deployment in Western-dominated legal contexts by those, Chinese actors included, trained to speak within their frameworks. Luckily, Heath’s work comes out during a time when many of the domestically centered accounts of the boycotts he cites are themselves being transnationalized by new scholarship exploring the legal dimensions of Chinese diasporic nationalism. Forthcoming work by Jenny Huangfu Day, Mara Yue Du, and Cong Wanshu are representative of this new work that seeks to more fully transnationalize how international legal practices evolved using the perspectives of domestic and diasporic Chinese actors.
Especially for debates within comparative studies of international law, or any other area of law, what is equally valuable about ESLO is that Heath acknowledges that others may better present different aspects of this large transnational history, but that it is simply materially incomplete to act as though such transnational dimensions simply do not exist because a domestically circumscribed analysis is easier.
ESLO’s footnotes demonstrate a serious engagement with scholarship on Chinese elements of his story—not through rote citation but committing the effort to recognize their internal debates and diversity. And such engagement is not just one-sided. Heath’s own diverse background in public and private international legal practice allows ESLO to explore interconnections with modern international legal practices that more China-focused scholars might miss or underappreciate. For many scholars, the revelation of deep transnational elements to most every arena of domestic law, especially the law of the central international actor of the 20th century, can inspire a reactionary discomfit of pushing beyond more comfortable frames of analysis. As Heath shows, this is akin to sticking to a geocentric concept of the universe because it is difficult to learn to use a telescope.
Jun 25, 2024 Verity Winship
The US produces technology and the EU produces rules. This “division of labor” was encapsulated in this exchange: On the acquisition of then-Twitter, Elon Musk tweeted “the bird is freed.” An EU commissioner almost immediately responded (also on Twitter) that “In Europe, the bird will fly by our rules.” Anu Bradford’s article, Europe’s Digital Constitution, opens with this collision between US tech entrepreneurs and EU regulators. The specific example is in service of a much grander vision. Bradford argues that European tech regulation can be understood as a “constitution” that expresses a normative commitment to “fundamental rights,” democracy, and “fairness and distribution” (P. 10.)
Bradford’s super-power as a scholar is the ability to take something that has been recognized and analyzed in piecemeal form, and then to enlarge the framework and fundamentally shift how we talk about the area. Her foundational earlier work provided a way to articulate an unformed instinct and collection of examples into the “Brussels Effect,” which identified the global reach of EU law (elaborated in her 2015 article and 2020 book).
Europe’s Digital Constitution brings together the different strands of tech regulation—competition/antitrust law, privacy law, taxation. Think of the General Data Protection Regulation (GDPR) or privacy law. Bradford shows the content and form of the EU law that is exported into global companies and used as a model for domestic tech law and regulation via the Brussels Effect. She pushes the reader to think of these in terms of a set of broad commitments to rights and democracy.
Conceiving these areas of digital regulation as a “constitution” points to underlying normative principles. A mild critique is that the use of the term “constitution” sometimes leads to dead ends. The tech “constitution” is an aggregate of statutes and nonbinding principles, elaborated at different times by different actors, so the analogy cannot be followed far. Overall, though, the focus on normative aims brings coherence to a cluster of regulations that are otherwise often studied separately.
Critics might point to EU digital regulation as an example of “digital protectionism” and “techno-nationalism,” but Bradford rejects this depiction. She provides examples to support her skepticism of the simplistic account that digital protectionism is the prime motivator. Particularly persuasive is that many invocations of European antitrust law have been by US tech companies against other US tech companies (e.g., Microsoft versus Google, or Epic Games versus Apple).
Bradford is not entirely uncritical of the EU approach. Bradford points to the perennial question of the relationship between regulation and technological innovation, and comments on a “persistent enforcement deficit” (P. 8.)
As well as providing an account of the underlying normative framework, the article does what some of the best comparative law does. It defamiliarizes the familiar home system and reminds readers of the multiple possible paths. Its brief description of the competing commitments of the US and EU to markets and what they mean by that is a good example. (Pp. 11-13.) The comparison begins by recognizing the shared EU and US “commitment to safeguarding fundamental rights and protecting democracy.” It then points out that, unlike the US, the EU decenters free speech; in the EU, free speech is one fundamental right among many.
It is worth quoting one line in full to give you a sense of the provocative details that can shift the reader’s perspective:
While the American regulatory approach frequently emphasizes that the government does not understand technology and should hence refrain from regulating it, the European approach is more concerned that tech companies do not understand how technology implicates constitutional democracy and fundamental rights, which their products and services often undermine.
(P. 12.) In sum, the piece is sophisticated, timely, and studded with many big and small gems. Well worth a read.
May 28, 2024 Kevin Cope
The recent special issue of International Journal of Migration and Border Studies, “Comparative Migration Law: Methods, Debates and New Frontiers,” features a diverse set of perspectives on the study of migration law. This jot specifically covers Daniel Ghezelbash’s excellent contribution to the issue, Legal transfers of migration law: the case for an interdisciplinary approach.
The article argues for a more expansive dialogue between legal scholarship and other disciplines to fully capture the intricacies of contemporary migration policy transfers. As Ghezelbash notes, legal transfers (also known as diffusion, transplants, borrowing, migration, or translation, among other things) involve the movement of a law between countries. The field’s pioneer was Alan Watson; in 1974, he controversially described “legal borrowing” as perhaps the most significant source of legal change, especially in the Western world. Whatever its validity as to other fields, Ghezelbash agrees that migration is a particularly fertile field for legal transfers, for two main reasons: (1) the interconnectedness of migration laws (in that, like trade in goods and services, a migration act necessarily implicates at least two, and usually many more, countries) and (2) the shared constraints faced by states in designing migration laws under international law.
Ghezelbash critiques both traditional and contemporary approaches to legal transfer literature. The traditional approach focused on the transfer of complete legal systems, usually in colonial contexts. In contrast, the contemporary approach recognizes that transfers often involve discrete rules or policies rather than whole systems. Ghezelbash challenges the traditional assumptions, recognizing that modern legal transfers often involve adaptation and change, with multiple jurisdictions and non-governmental actors participating in the process. These transfers are not mere copies; they are adapted to fit the local context, sometimes through policy, programs, executive orders, or judicial decisions, rather than formal legislative acts.
The article’s main contribution is Ghezelbash’s proposed framework for using interdisciplinary methods to (1) identify legal transfers; and (2) assess their success. As to identification, he outlines four steps: identifying a common policy problem, comparative analysis, seeking physical evidence of transfer, and conducting interviews with key agents involved in the process. Ghezelbash highlights the challenges of identifying causation in transfers. Here, the fact that two countries have provisions that are similar, either textually or functionally, does not imply that one caused the other. Of course, causation is an issue with which both social scientists and lawyers regularly grapple, albeit in different contexts and using different methods. In essence, Ghezelbash is describing a form of process-tracing, a term well-known to social scientists, especially those doing qualitative work, but probably somewhat less familiar to most legal scholars.
When assessing the success of legal transfers, Ghezelbash urges moving beyond the “law as culture”/“law as positive rules” schism to adopt a more practical approach. Success should be viewed in terms of whether the transferred law fulfills its intended function within the new context. To measure this success, Ghezelbash notes the existing multidimensional framework, which considers programmatic, political, and process success. To these, he would add legal success, which considers whether a transferred policy has been validated, invalidated, or otherwise distorted by courts based on controlling domestic or international law. Indeed, judicial ratification is an important feature that fields outside of law, namely, political science and public policy, have often overlooked.
Ghezelbash concludes by answering the “so what” question: why study transfers of migration law? His answer is partly similar to what some others have said about the comparative study of migration law generally: first, by comparing similarities and differences in “legal cultures and institutions,” we can test various hypotheses about policy effectiveness advanced by migration scholars. Second, doing so will aid in advocating for fairer or otherwise improved migration and refugee law policies. Ghezelbash concludes by advocating for research that contributes to the transfer of best practices and reforms in migration law, underlining the need for a clear and transparent framework for success to support such advocacy.
Ghezelbash’s article is a valuable contribution to the growing body of work seeking to integrate social-science methods into the study of international and comparative law. I hope migration law scholars and practitioners from all disciplines and perspectives will take the chance to read it and incorporate its suggestions.
Cite as: Kevin Cope,
Borrowing Immigration Law, JOTWELL
(May 28, 2024) (reviewing Daniel Ghezelbash,
Legal transfers of migration law: the case for an interdisciplinary approach, 7
Int'l J. Migration & Border Stud. 182 (2023)),
https://intl.jotwell.com/borrowing-immigration-law/.
Apr 24, 2024 Sam F. Halabi
As I have long argued, intellectual property represents a neglected dimension of the global structures affecting equity and redistribution, and I welcome a new volume dedicated to this essential nexus of law and justice, The Cambridge Handbook of Intellectual Property and Social Justice edited by Steven Jamar and Lateef Mtima. Although maintaining a general focus on intellectual property and social justice topics arising in the context of the United States, the volume includes a valuable section on “Intellectual Property Social Justice in Global Perspective” focusing on gender and development disparities. Featuring chapters from Zehra Betul Ayranci, J. Janewa Osei-Tutu, Mariana Bernal Fandiño, Marcela Palacio Puerta, and Metka Potočnik, Jamar and Mtima provide scholars of intellectual property and social justice one of the most important resources to date on how the control of access to innovation, images, and compositions both exacerbates inequality but also how those same intellectual property protections maybe restructured to ameliorate it.
This book is one I like a lot, and I hope others active in the study and shaping of intellectual property do as well. It is perhaps the most comprehensive volume on the juxtaposition of intellectual property and social justice—many scholars including myself analyze the socially beneficial and pernicious effects of current intellectual property approaches, but far fewer characterize them in such a specific way. Jamar and Mtima and their contributors have offered novel and creative recommendations to advance social justice through intellectual property. Indeed, Madhavi Sunder brings this point home in a particularly compelling way in her chapter on Intellectual Property After George Floyd.
Two examples are illustrative. In Jan Osei-Tutu’s chapter on Intellectual Property, Social Justice, and Human Development: Empowering Female Entrepreneurs Through Trademark Law, she identifies how trademarks can be used to boost the vast, often informal, economic sectors run by women, especially women who own small businesses. Marcela Palacio Puerta provides a similarly insightful lesson about how civil society advocates can shape the implementation of intellectual property provisions of bilateral trade and investment agreements, often aiming to increase IP protective floors above multilateral trade agreements like TRIPS. Using the U.S.–Colombia Free Trade Agreement copyright provisions, she shows how copyright provisions can be adapted to advance social justice objectives even in agreements that are at best indifferent and often hostile to doing so. She argues that provisions ultimately adopted provide more socially equitable access, inclusion, and empowerment opportunities for users, the general public, and other groups beyond the narrow economic interests of rightsholders (although she concedes those remain robustly protected)
The book is divided into seven sections covering critical areas of intellectual property social justice inquiry. The editors and contributors cover themes, institutions, and IP categories including the special roles of libraries, artificial intelligence, and the growing role of the user and the individual as traditional forms and protections bend in light of both innovation and the demands of the vulnerable and those advocating on their behalf.
Jamar and Mtima have undertaken a valuable exercise in using this volume not only to map the pressure points where social justice advocates are making gains in traditional IP categories, but to expose the ways in which conventional social utility analysis and justifications are giving way. As intellectual property becomes the battle ground for the modern economy and global political centers of power, Jamar’s and Mtima’s volume, and along with it their contributors, will be a go-to resource for those assessing how to move forward with such rapid and contemporaneous change.
