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.
Mar 27, 2024 Mathilde Cohen
The colonial origins of public international law are increasingly front and center of scholarly and political discussions in the field. In her insightful essay, Anne-Charlotte Martineau suggests that the supposed “private” nature of private international law also derives, in part, from extractive European colonialism. More often known as conflict of laws in the common law world, private international law governs the resolution of transnational disputes, focusing on issues such as jurisdiction, choice of law, and enforcement of judgments. Martineau recounts that from the middle of the sixteenth century, scholars of the so-called School of Salamanca—the intellectual movement led by Francisco de Vitoria that developed at the university of Salamanca in Spain—were mobilized to legitimize and facilitate enslavement and other violent practices by reconceptualizing the law of marriage.
Martineau’s piece is published as part of a symposium on the interrelation of the public and the private in international law, inspired by the work of late Canadian international law scholar Karen Knop. Martineau’s contribution constitutes a manifesto in its own right, calling for comparative and international law practitioners and scholars “to redress the invisibility of women in the history of international law” from an intersectional perspective. She builds upon Knop’s claim that “recuperating private international law as a lost side of international law can open up counter-disciplinary research on gender in the history of international law” to revisit a debate that arose in the 1540s. Jesuit missionaries in Brazil asked jurists and theologians associated with the School of Salamanca back in Europe to assess the validity of marriages among colonized peoples such as the Tupi people and among enslaved persons. The motivation was initially religious—if these unions were illegitimate under canon law, for example because they were consanguineous, polygamous, or temporary, spouses could not be baptized and converted to Catholicism. In the 1580s, the impetus became primarily economic and biopolitical—as sugar production prospered, European colonizers demanded an ever-growing workforce to exploit. The issue became whether enslaved people kidnapped from Angola and Indigenous people captured in the hinterland (sertão) to work on plantations could enter into second marriages given that they had been forcibly separated from their consorts back home.
Martineau recounts that the juridical and theological answers heavily relied on conflict of laws reasoning, resulting in a special, ad hoc law of marriage. She points out that jus gentium, the customary law thought to be held in common by all peoples or nations at the time, “was set aside” in favor of natural law and a version of canon law fitted to imperial needs. Papal dispensations were obtained to allow, among others, for marriages between first cousins. Pope Gregory XIII himself intervened in 1585 to proclaim, “the papal power of dissolving marriages of unbelievers ‘if necessity urges.’” This capacity was delegated to missionaries, who could annul the marriages of “enslaved Brazilians and Africans who were ‘unable to communicate’ with their first spouses.” In theory, remarriage was framed as an exemption only valid for the colonies and inconceivable on European soil. And yet Martineau points out the influence of the colonial construction of marriage on “jurists and theologians of the peninsula,” who developed gendered arguments about whether spouses could stay married if they were enslaved wherever they might be. She notes that a leading Portuguese Jesuit proposed a different regime for men and women, arguing that a “man can sell himself and keep his wife,” but a woman lacks the same right because she cannot escape “her husband’s commands.”
Martineau’s work illuminates the history of private international law as a body of law that entrenches power structures, reproducing racial and gender hierarchies despite its apparent neutrality. It also carries urgency on a planet where migration is a fact of life due to structural and conjunctural factors, from labor migration to displacement attributable to violence and war. More people than ever give birth, adopt children, marry, divorce, enter into contracts, and die far from their country of birth. In this mobile and multicultural world, conflict of laws structures our relationships to one another, shaping, in particular, the status of persons and families as well as contributing to existing social hierarchies. Martineau’s musing raises the question of which people, practices, and relationships are valued and protected by private international law. According to Ivana Isailović, “many questions at the heart of the discipline . . . allocate privilege and wealth based on gender,” such as such as “the recognition of foreign divorces and marriages,” “the regulation of the global market for reproductive services” and “how the imposition of Western family and gender norms in colonial spaces have historically shaped Empires.” In a similar vein, Horatia Muir-Watt has suggested that private international law should be reclaimed to develop a more inclusive model of differences, which she dubs a “law of inter-alterity.” Martineau’s penetrating article shows that challenging the supposed private nature of the field is an important step in this direction.
Feb 27, 2024 Erin F. Delaney
Harshan Kumarasingham,
The Historical Constitution,
in 1
The Cambridge Constitutional History of the United Kingdom (Peter Cane & H. Kumarasingham eds., 2023).
There is much to like in the new two volume Cambridge Constitutional History of the United Kingdom, a masterful compendium of theory and history from leading scholars, covering everything from King Æthelred the Unready to Liz Truss (similarly unready). As a comparative matter, however, it is Harshan Kumarasingham’s excellent opening chapter The Historical Constitution, that resonates with current debates in the United States.
As the U.S. Supreme Court falls further and further in thrall to history, with its attending assumptions of neutrality, certainty, and truth, it is illuminating to read about constitutional history in the United Kingdom. Kumarasingham recognizes that “[a]ll constitutions rely on history” (P. 3), but in his telling, history is acknowledged both as constitutive of the British constitution and as a political construct. The candor is refreshing.
The chapter explains that the uncodified nature of the British constitution makes reading history necessary, as the constitution itself is a mixture of institutions, laws, and political practices (P. 26). Like “a car whose driver uses only the rear-view mirror for guidance,” the British constitution has been developed by looking to the past to determine the future. But that past has often been recreated to serve future needs. Constitutional history has been “elastic”; the “Glorious Revolution,” far from a glorious “bloodless revolution achieved under the ‘fabric of an ancient constitution’”, was actually a “reality of destructive havoc, divided allegiances, weaponized positions, contested dogma and transactional replacement of kings” (P. 10).
Kumarasingham draws together various histories and critical reevaluations to demonstrate the ways in which constitutional history has been deployed. History served to enforce social norms “to distinguish those who deserved power and those who did not” within the constitutional scheme (P. 13). Indeed, in being both “descriptive and prescriptive,” the constitutional historian might well have “perpetuated ‘the acquiescence of the many in the rule of the few’” (P. 14).
In addition to history’s usefulness in maintaining the status quo, history has also served as a more immediate and straightforward political tool: Politicians wrote histories, and historians were often identified by political party, since the historical outputs were used to “justif[y] a party’s record in government” (P. 17). As Kumarasignham notes, politicians using history to “ ‘discover what they wished to discover,’ ” is a “tendency that has not ended” (P. 17).
Lawyers, too, have drawn on history, and it may have been the “common-law mind” that created the “ ‘immemorial’ nature of the constitution,” and “intensified the ‘radical’ tendency of the “English mind’ to ‘read existing law into the remote past’ ” (P. 29). As Kumarasingham notes, “even a cursory examination of the nineteenth century . . . shows how practices and principles thought deeply historical and intrinsic to the constitution are, in fact, of more recent innovation and expedience” (P. 31). And yet, “the fact that [jurist Sir Edward] Coke and others mythologized and reinvaded the past . . . is not sufficient to erode their significance” (P. 29). Kumarasingham quotes John Baker as saying: “ ‘Coke may have got some of the early history wrong, but his constitutional conclusions have thrived down the centuries because they seemed right.’ ” (P. 29).
Constitutional history has thus been a tool for the articulation of values and structures that achieve longevity and fidelity, not necessarily due to their truth value as historical facts, but to their perceived “rightness” or effectiveness within society. The process is constitutive and forward looking. And, as Kumarasingham notes, the constitution, due in part to the very elasticity of its historical development, has a “generous allowance for expedience” (P. 32). “This “feature” has allowed many different groups to “reason that constitutional power could be theirs. Both Monarchists and Marxists could utilize such history” (P. 32). In the United Kingdom, “[p]ower and people are at the heart of the constitution’s history” (P. 33)—a project of contestation and construction that draws on the past more often for inspiration than for limitation.
Dec 15, 2023 Rosalind Dixon
Rarely has a book by a constitutional lawyer had such timeliness: Julie Suk’s monograph, After Misogyny: How the Law Fails Women and What to Do About It, talks about the ways in which women often do too much, and men too little, to sustain the life, work, and health of others.
In 2023, the same message is all around us. Anna Funder’s 2023 much lauded book, Wifedom: Mrs Orwell’s Invisible Life, tells the story of how George Orwell’s literary corpus was built on the back of the contributions of his wife, Eileen O’Shaughnessy, and yet those contributions were consistently minimized by Orwell himself and others writing about his work.
The new mini-series The Change, on the UK’s channel 4, gives a humorous though still highly pointed account of what Suk argues is core to misogyny, namely: the “overentitlement and overempowerment” of men compared to women. The protagonist of The Change, Linda, has spent decades carefully recording the amount of time she spends on household work (to the second), and when she turns 50, she decides that the lack of recognition of that work within the family calls for change, including a well-earned sabbatical from wifedom.
What distinguishes After Misogyny from these parallel accounts of sexism or misogyny is that Suk is a leading comparative constitutional scholar, and a central argument of the book is that constitutional norms offer an important resource in responding to this problem.
In making this argument, Suk draws on her considerable comparative knowledge, and especially her expertise in European constitutionalism, to highlight for a US audience the possibilities for imagining a more care-conscious model of constitutionalism. Suk calls this a “constitutionalism of care” and suggests that its value lies in reshaping public attitudes and expectations, by “recognizing the public value of [women’s] sacrifices and entitling mothers to the protection of the community in return” (P. 208).
This argument is also especially welcome in the US. It echoes the calls of other feminist constitutional scholars for us to pay greater attention to the relationship between constitutions, care, and social and economic transformation. But it also seeks to draw out the relevance to the US of historical and contemporary comparative experience in this area.
This same “double turn” – from the US to comparative experience and back to the US – is a hallmark of Suk’s prior work on the Equal rights Amendment. In the We the Women: The Unstoppable Mothers of the Equal Rights Amendment, Suk traces the history of the attempts to pass the ERA, the lessons from the globe about what constitutions can deliver for gender equality, and then turns back to the US to offer contemporary American feminists a clearer appreciation of the stakes behind the ERA debate.
The same pattern is a hallmark and strength of After Misogyny. In this second important book on gender and constitutionalism, Suk takes us to recent and long-ago moments in Chile, Iceland, Ireland, Germany, and Italy to better to understand how the US can promote a more care-conscious society – i.e., one that does more to empower and reward women, rather than encourage male over-empowerment and overentitlement.
The main challenge for the US in this context is that its recognition of care is quite gender-specific. That is, it recognizes the role of mothers, rather than non-binary or male carers, or families in which care is divided more flexibly. As Suk notes, this raises constitutional difficulties under current US Equal Protection doctrine. (Here again one can see the connection to Suk’s past work on the ERA and the value of changing existing US constitutional gender equality approaches.)
There are also conceptual dangers to constitutionalizing care norms in ways that reinforce rather than challenge gendered expectations around who performs care work. While revaluing care is critical to gender equality and the feminist project, equating care-work with mothers is much more problematic for women. It often implies limits to women’s collective economic empowerment. South African Constitutional Court Justice Kriegler put the point this way in his dissent in President v. Hugo:
‘the notion … that women are to be regarded as the primary care givers of young children, is a root cause of women’s inequality in our society. It is both a result and a cause of prejudice; a societal attitude which relegates women to a subservient, occupationally inferior yet unceasingly onerous role. It is a relic and a feature of the patriarchy which the Constitution so vehemently condemns’.
In essence, the challenge is to revalue mothering, while at the same time empowering women to choose roles other than – or in conjunction with – mothering. And this means encouraging men to mother – no small ask in a world in which market-based work is rewarded so much more highly than most care work.
Suk is alive to this danger and usefully notes the distinction between the act of mothering –or intense parenting – and the gender of the parent (P. 199). It may still be better, in this context, to talk about primary versus secondary parenting. There are limits to this: pregnancy, childbirth, and breastfeeding remain distinctly gendered forms of care work and reproductive labor. And they are a huge if rewarding form of labor. But there is still a broad scope of intense parenting that could readily be made gender neutral, or equal. And hence, we should be careful about both the scholarly and constitutional language we use in this context.
Labels aside, however, Suk notes attempts in Ireland and Chile to de-gender a constitutional commitment to mothering (Pp. 200-207). So far, these attempts have not led to formal constitutional change in either country. But there are strong indications of informal, court-led change in Ireland, or a dynamic approach on the part of Irish society to developing constitutional motherhood provisions.
The real question is how we can ensure that attempts to constitutionalize care actually lead to concrete change, and that our efforts to reward mothering do not simply end up enchaining women – or perhaps worse, rewarding men who pretend rather than actually show up to the work historically done by mothers.
This a hard question, and one we have just begun to tackle. But in answering it, we will surely be better for reading and engaging with Suk’s important new book.
Nov 10, 2023 Kristen Stilt
It is a rare event to begin reading an article and soon realize that the approach the author is taking is so novel, so creative, so analytically precise, and indeed so brilliant that it should redirect and reshape an entire field of study. I am pleased to jot about an article that does just that: Saskia Stucki’s Animal Warfare Law and the Need for an Animal Law of Peace: A Comparative Reconstruction. Stucki begins with a short quote from George Orwell’s 1984: “War is peace.” This is far more than a catchy epigraph; it strikes at the heart of the main problem with how humans treat animals in law and society all over the world today. In many or even most jurisdictions, what is typically called “animal welfare law” seemingly refers to laws intended to ensure the welfare of animals. As Stucki argues so clearly, that is a seriously flawed understanding of the situation of animals. Most animals are used and exploited by humans for human desires, and the largest number of animals by far are ones whom humans raise to kill for food. What does welfare possibly mean when we are talking about use, exploitation, and slaughter? For proponents of an animal welfare strategy, it means reducing suffering.
For some animal advocates, there is no chance of providing any meaningful welfare in these situations, and it is Orwellian to say that an animal was killed for food in a high welfare way, or that the welfare needs of an elephant in a circus were attended to when the only way to make elephants perform entirely unnatural tricks is through brute force in training. To actually improve the condition of animals demands recognition that they are rights holders and actual implementation of basic rights: the rights to liberty and bodily integrity, for example. Getting the animal out of the cage altogether, not just a more comfortable cage. These two approaches may seem to be running on different tracks and moving in different directions, and never the twain shall meet. This article rejects the notion that animal welfare law and animal rights are “competing and mutually exclusive paradigms for the legal protection of animals.” (P. 9.) The brilliance of this article is that Stucki does not merely take down this notion. She shows that the two approaches are instead “distinct yet complementary bodies of law” (P. 9) by clearly and precisely analogizing the laws regarding animals to the laws regarding war.
That brings us back to the title. “Animal warfare law”—what is that? This, Stucki argues, is what we currently call animal welfare law. This welfare of animals that so many jurisdictions apparently provide for must be seen against the backdrop of institutionalized violence and exploitation. In that sense, animal welfare law (AWL) serves a similar function as international humanitarian law (IHL) insofar as they both regulate, restrain, and humanize violence. (P. 3.) IHL is part of a triad in international law. The law of peace seeks to prevent war (jus contra bellum, or the prohibition on the use of force with very narrow exceptions) and in times of peace, human rights (HR) law is intended to protect humans, forming the trio of IHL—jus contra bellum—HR.
The fields of AWL and animal rights law (AR) do not have a similar triad, but one of Stucki’s tremendous accomplishments in this article is to chart one out, “rethinking AWL through the comparative lens of IHL.” (P. 4.) Stucki proposes the animal law equivalent: AWL—jus animalis contra bellum, or the prohibition on the use of force against animals with very narrow exceptions —peacetime AR. (P. 9.) Stucki goes further to make the most of this comparison. “Jus contra bellum for animals … facilitates a gradual transition from the ubiquitous war on animals to carving out and safeguarding zones of peace, and thereby paves the way for the formation of a more aspirational law of peace.” (Pp. 33-34.)
Stucki then uses the comparison to gain some traction on how “peacetime” AR might still be relevant in “wartime” AWL to counter the idea that AWL and AR should “adhere to a clear-cut division of labor, the former governing exploitative, violent situations and the latter non-exploitative, peaceful relations. However, a comparative look to the relationship of IHL and HR demonstrates that complementarity between antithetical wartime and peacetime regimes is possible.” (P. 37.) HR has been credited with the humanization of IHL. Likewise, “AWL is not a static body of law and thus potentially susceptible to the transformative and humanizing influences of AR.” (P. 41.)
The writing in the article is beautiful and each sentence and paragraph logically flows from one to the next. If you are not familiar with animal law or the laws of war, or if both are new to you, do not let that keep you from reading this article. Stucki carefully takes the reader through difficult terrain, using tangible examples to ensure that her argument is crystal clear. And further, it is not everyday that we have a front row seat to the reframing of a field of inquiry. Don’t miss this one.
Cite as: Kristen Stilt,
War is Peace, JOTWELL
(November 10, 2023) (reviewing Saskia Stucki,
Animal Warfare Law and the Need for an Animal Law of Peace: A Comparative Reconstruction, 71
Am. J. Comp. L. 189 (2023)),
https://intl.jotwell.com/war-is-peace/.
