Apr 5, 2023 Shubha Ghosh
Many nation states have grappled with the questions raised by the use of artificial intelligence (AI) in administrative decision-making, law enforcement and criminal prosecution. National courts have addressed the use of data analytics for criminal sentencing. National legislatures have debated regulations limiting the use of machine learning for surveillance and profiling. But what role does international law play in the governance of existing and emerging artificial intelligence technologies? As of this writing, there are no international treaties providing guidance or imposing obligations on signatories in shaping the regulation of artificial intelligence. National law is the sole locus for containing artificial intelligence-based technologies.
Two essays published in the American Journal of International Law Unbound contribute to the neglected area of international law and artificial intelligence. Both look to international human rights law as the source of protections for liberty and equality in the encroaching technologies of machine learning, data analytics, and other software aided tools in the domains of law. Each however takes a different approach to integrating technology with traditional legal approaches in reining in unchecked uses of artificial intelligence. One author is skeptical of human rights law and its potentially luddite tendencies. The other author advocates for democratic values, as embodied in international human rights law, as providing the check for the deployment of new technologies. Because these two essays fill a longstanding gap in the scholarly literature on artificial intelligence and international law through contrasting yet complementary approaches, these are important works that I like lots.
Professor Malcolm Langford, University of Oslo Law Faculty, examines how two rights recognized under international human rights law can moderate the use of automation in administrative decision making: the right to social security and the right to a fair trial. These two rights, he points out, are often the basis for criticisms of administrative implementations of artificial intelligence for making decisions about the denial of benefits or alteration of rights. While Langford acknowledges the criticisms, he emphasizes that “they should be evidence-based, informed by an understanding of ‘technological systems,’ and cognizant of the trade-offs between human and machine failure.” (P. 141).
Langford’s account of AI begins with the parallels between the logic of AI and the logic of legal process recognized in the 1970’s. This recognition led to introduction of automated technology in the administration of benefits, justified in part by the need for efficiency in allocating and distributing benefits and in part by the need for promoting ease of access. As automation expanded, the democratic goals of transparency, participation and accountability became compromised. At the same time, the advantages of technology in providing benefits underscored the need for digital literacy among the recipients of government benefits. Furthermore, digitization of appeals transformed administrative hearings into formal adjudication. Transformation into formal adjudication reveals the need to recognize a right to a fair trial within the digital rule of law. This right is necessary to combat arbitrariness and discrimination created by digital algorithms. In addition, the right can counter concerns about legal accuracy and lack of transparency in algorithm-based methods. Finally, a right to a fair trial can address inequities between parties arising from unequal resources and access to counsel.
Substantive rights may cure the threats from digital technologies, but they serve to critique the use of artificial intelligence in legal process more broadly. Langford identifies Severalin which critical empiricism can guide the critique. The primary question is how critics frame the technology. Langford emphasizes that technology is not an artifact or a thing but a “complex assemblages of components and know-how that make up ‘technological systems.’” (P. 145). Analogously, the right to a fair trial “is based on a complex combination of actors, processes, and rules.” (Id.). This systems-based approach to artificial intelligence and legal rights highlights the use of systems as tools for control as well as tools for change. “Public administration,” Langford concludes, “should be understood as a form of technology, complex and hierarchical amalgam of rules, algorithms, institutions and spaces—that can both liberation and repress.” (Id.)
This complexity points to the need for evidence to document the ills of artificial intelligence . Design of automated administration should minimize the dangers whether these ills arise from machine or human error. Evidence should inform regulation of artificial intelligence to preserve the values of democracy such as accountability and transparency of process. Regulation would go together with new digital tools that can hold the government accountable for how technologies are implemented and used for decision-making.
Langford envisions a role for digital technology to combat digital technology: “Public and private investment in digital accountability will be crucial therefore in ensuring that automation advances rather than retards international human rights.” (P. 146). Langford identifies “public interest technologies” that can mobilize citizens to counter AI and government overreach acomplaints to identify AI failures and to propose regulations to cure them. One example is JustBot, an application to help individuals in Europe “apply more readily to the European Court of Human Rights and potentially avoid customary summary rejection.” (Id).
In contrast with Langford, Daragh Murray of University of Essex advocates for a critical regulatory perspective on artificial intelligence in administrative decision making. His argument is that international human rights law obligates states to ask two questions before deploying artificial intelligence: (1) why a deployment is necessary and (2) what alternatives are available. These two questions are assessed against democratic principles that protect individuals against arbitrary state interferences violative of human rights. What Murray proffers is a framework for legislatures to follow in assessing policy justifications for adopting AI-technology and for courts to review legislative decision making.
Mr. Murray frames this inquiry as an ex ante obligation on states to address these questions before deploying AI technologies. But he also recognizes that court may apply this inquire ex post to review AI technologies that states have implemented. He uses the example of live facial recognition technology in the United Kingdom where an appeals court was reviewing the South Wales Police’s adoption of face recognition technology, as of the time of the article’s publication.
AI deployment is necessary based on an assessment of “the potential utility and the potential harm of any deployment, in light of the constraints of democratic society.” (P. 160). This assessment of utility and harm would include fidelity to democratic principles, the solution to a pressing need, and a proportionality analysis of means and ends. This third factor points to the consideration of alternatives to artificial intelligence in light of the objectives underpinning the deployment, the necessity of the objective, and the precise manner in which the technology is implemented. Furthermore, before deploying any AI-technology, the state should consider whether it “could use other, less invasive, approaches to achieve the same—or sufficiently similar—objectives.” (p 161). For example, alternatives to facial recognition technology to identify individuals subject to an arrest warrant would include contacting the person’s family or household and visiting places where the person is known to frequent.
This two-question approach leads Murray to an inquiry that would distinguish between AI technologies that represent “a continuation of preexisting police capability by other means, or…a step-change in capability.” (P. 162). For AI technologies that serve as a continuation, Murray proposes that resource efficiencies are relevant for decision-making, given the potentially positive impact would have on the state’s effectiveness. If, however, a particular AI technology represents a step-change in police capability, resource efficiencies should not be relevant for consideration because of the expansion in state powers and potentially adverse effects on human rights. In short, Murray offers a human rights-centered methodology to assess and control state deployment of artificial intelligence.
These two articles together fill a gap in understanding artificial intelligence within international law. While filling a gap, the articles also expand the debates over artificial intelligence. International human rights can aid human judgment as it confronts the challenges posed by artificial intelligence. These two contributions set forth the place of legal process and the role of AI in the future of human rights. Together they provide a preliminary roadmap for reforms. Separate, each article supports the two sides of ongoing debates, those who favor traditional law and those who favor novel technologies. These two articles together I like a lot because they are important seeds for future scholarship on law, policy, and technology.
Shubha Ghosh, Artificial Intelligence, Human Rights, & Legal Judgment, JOTWELL (April 4, 2023) (reviewing Malcolm Langford, Taming the Digital Leviathan: Automated Decision-Making and International Human Rights, 114 Am. J. of Int'l. L. Unbound 141 (2020); Daragh Murray, Using Human Rights Law to Inform States’ Decisions to Deploy AI, 114 Am. J. of Int'l. L. Unbound 158 (2020)), https://intl.jotwell.com/?p=4651&preview=true.
Feb 28, 2023 Kevin Cope
Much of traditional international law scholarship takes law as exogenous. That is, it starts with the law as enacted, and analyzes the morality or consequences of the law, or it makes a case for changing it to achieve more just results. But researchers over the last couple of decades have increasingly used the methods of international relations to tackle traditional questions of international law. Now, questions relevant to international lawyers are increasingly taken up by political scientists. Yet, due in part to the respective fields’ differing languages and methods, a sizeable gulf remains between them.
Studies like Sheppard and von Stein’s excellent article, Attitudes and Action in International Refugee Policy: Evidence from Australia, recently published in the journal International Organization, are helping to bring the two fields closer.
The authors are interested in measuring how different framings effect public support for an Australian refugee policy that turns back asylum-seekers bound for the country’s shores. They use a survey experiment conducted on over 2,000 Australian adults. Each respondent is given a background statement about the policy: the policy violates international law; it is immoral; it could damage Australia’s international reputation; or nothing (the control). Respondents are then asked how much they support the policy.
Although only one statement concerns international law per se, these three treatment framings can be thought to roughly track some of the main theories of how international law works. States are thought to value their reputations for international law compliance; some argue that states construct an identity for (non-)compliance; and the international law treatment may trigger fears that other states or organizations will retaliate against Australia for its violations (though in reality, this is unlikely in this scenario).
The study expands on previous work in a couple of ways. In addition to measuring support for the policy to repel refugees, the study seeks to measure willingness to take action to change the policy: Respondents are also asked whether they would sign an opposition petition, protest, or donate to an NGO to help oppose the policy. This innovation recognizes that opinion often doesn’t translate into action. While saying one is willing to do something doesn’t translate perfectly into action, it’s as good a measure as is likely available in this context.
The findings in some ways reinforce existing studies of how international law and norms affect support for migration policies. They find that invoking international law has the strongest positive effect on public opinion; that is, at least a fraction of the Australian population seems reticent to have its country violate international refugee law, even though those citizens may support the underlying policy on substantive grounds. This may surprise some skeptics of public international law’s efficacy. But to many others, it will be unsurprising, especially those familiar with studies conducted on U.S. residents on the normative force of international law. The morality treatment also significantly reduces support for the refugee-diversion policy, as does the reputational treatment, though not as strongly as the international law treatment.
In other ways, the results provide a unique perspective on what sort of institutions matter in international immigration law. For instance, much of the experimental research on the effect of international law on policy attitudes has been conducted on U.S. residents. Those studies generally found a positive response to international law. But more recent research conducted outside of the West has found mixed results, with respondents in Israel and Turkey exhibiting a backlash to international law concerning torture and refugees, respectively. The finding that people in Australia respond similarly to those in the United States may begin to paint a picture of Western countries’ responding positively. Perhaps this can be explained by the notion that international law is sometimes thought to be a largely Western-invented and developed institution; future research could explore this idea more directly.
Unfortunately, social-science journal word limits usually make it impossible to include in-depth theoretical discussions in an empirical study. But the article left me seeking an even deeper exploration of the normative mechanisms at work in shaping public opinion action. Scholars of law and of social psychology have long been interested in these questions, but only relatively recently have empiricists started to test the theories as they pertain to international legal compliance. For instance, the authors here don’t find a backlash, but where a legal treatment does prompt respondents to express an opinion or behavior contrary to the legal mandate, it is possible either that the subjects disapprove of the law, or that that subjects just don’t believe or agree with the surveyor’s characterization of the law. In other words, they may not effectively receive the “true” treatment of changing respondent beliefs.
Given that the international refugee law and most human rights treaties have weak, if any, formal enforcement mechanisms, these institutions depend in large part on public opinion and public action for state compliance. Sheppard and von Stein’s study takes an important step forward in furthering our understanding of how refugee advocates can bring that about.
Jan 20, 2023 Rosalind Dixon
In his important new book, The Law as a Conversation Among Equals, Roberto Gargarella offers a new vision for both democratic politics and democratic constitutionalism. Politics, Gargarella argues, should be more both egalitarian and participatory, and premised on a form of grassroots “conversation among equals” rather than elite Schumpeterian-style competition or bargaining. Constitutionalism, in turn, should do more to enable and encourage this kind of participatory politics – through citizen assemblies as key part of a process of constitutional design and amendment, and “dialogic” models of judicial review that encourage and empower democratic participation.
Why? The current disillusion with democracy, Gargarella argues, is driven by a fundamental desire for – and indeed expectation of – voice and participation on the part of citizens, when current democratic and constitutional models remain largely non-participatory in nature. This mismatch has grown over time and is now in urgent need of redress if we are to restore faith in the democratic constitutional project.
Gargarella makes these arguments in his usual powerful and poetic way, drawing on constitutional history and theory from across the Americas (i.e., Argentina, Chile and the United States). First, he suggests that his ideas draw on understandings of constitutionalism that focus on structure over rights. Here, Gargarella’s previous important work on this topic features prominently. In doing so, Gargarella aligns himself with other 19th century thinkers such as Madison, who proposed that the “only effectual safeguard to the rights of the minority, must be laid in such a basis and structure of the Government itself”. Second, he suggests that his ideas are a radicalization – or continuation – of Bruce Ackerman’s idea of “constitutional moments”.
Gargarella also addresses potential critics head-on: Constitutional assemblies, he suggests, have now been adopted in a sufficient range of contexts to show their plausibility as a model for large-scale democratic deliberation. Further, they are not equivalent to constitutional plebiscites. Indeed, one is structured to promote deep and deliberative conversation among participants, where the other involves a relatively shallow form of participation, based on a single vote for a bundle of ideas, many of which citizens may disagree with.
Finally, a turn to democratic deliberation does not require an abandonment of commitment to rights: Indeed, the foundation for a conversation among equals is a deep commitment to equality and self-government, and in the virtues of deliberation in promoting rights-respecting outcomes. In this sense, Gargarella takes a similar position to Jeremy Waldron about the virtues of political over legal constitutional models of rights protection. But he also goes beyond political constitutional ideas and draws on public choice theory to highlight the degree to which rights may end up advancing powerful (rather than vulnerable) minorities, or even powerful government actors. Hhe notes my own previous argument that rights may be used to advance the interests of would-be authoritarian actors seeking to “bribe” civil society into lending support for anti-democratic or “abusive” constitutional change.
These answers are persuasive. And the case Gargarella makes for dialogic constitutionalism on the part of courts is especially compelling. He also avoids the danger that one might fear arises from the title of the book – namely, the danger of treating judicial review, not just democracy, as a conversational practice. Gargarella envisages a weak, collaborative or responsive model of judicial review, but also one that acknowledges the decisive and coercive nature of legal decision-making by courts.
What I was less persuaded by is whether the models Gargarella presents – of elite and participatory democracy – are really the only game in town. There may in fact be true hybrid forms of elite and participatory democracy that offer a viable, and attractive, third way worthy of consideration along with Gargarella’s own preferred participatory model.
For instance, Chile’s recent participatory constitutional model produced a constitutional draft that was ultimately rejected by a majority of voters. The same was true for the republican constitutional proposal coming out of the 1988 Australian Constitutional Convention. But that Australian proposal came much closer to being adopted, and the Convention comprised a true mix of elite (appointed) and popularly elected representation. This mix also contributed to the success of the body in creating the kind of “synthetic” agreement Gargarella touts as a solution to intractable democratic disagreement.
More important, the Australian political model is one that combines representative democratic processes with a widespread mandate for democratic participation: It has a system of compulsory voting backed by a mix of sticks and carrots. The sticks are a legal requirement to vote in all national, state, and local elections, or face a modest fine. The carrots are a work-friendly model of Saturday and postal voting, backed by social norms that support making voting enjoyable and accessible. The system also achieves more than 90% turnout at national elections. It also promotes equal access to the franchise for Australians from different racial and economic backgrounds. Instead of parties courting the party base, they seek to persuade the median voter. And instead of low-income voters being deterred from voting, they are encouraged to vote by the ease and accessibility of voting.
In addition, Australia adopts a system of ranked choice voting that minimizes extremist outcomes, and the chances that certain voters will have their vote thrown out, or “not counted”. These twin features of the Australian democratic model have also helped underpin democratic non-retrogression, and a relative degree of ongoing trust for democracy in Australia. Where that trust has broken down, it has also helped facilitate the election of largely non-populist independent candidates and third-party candidates whose aim is to retore democratic integrity and faith in government.
The Australian model, however, is far from the deliberative conversation among equals which Gargarella champions. Gargarella is careful to note that vigorous competition and contestation can go hand in hand with the model of participation he envisages. But his ideal is deliberation not competition. And the Australian model is closer to an ideal of competition rather than conversation among equals.
Ultimately, Gargarella succeeds in making the case for a newly democratic, egalitarian politics, and an attempt to protect democracy against retrogression by reinvigorating it rather than wrapping it in constitutional cotton wool. In this sense he echoes recent arguments by Tushnet and Bugarič in favor of the virtues of pro-constitutional populism.
My only question is whether that politics should be as participatory as Gargarella suggests, or rather a true hybrid of elite and citizen participation. A conversation among equals is an attractive idea, but perhaps a competition among equals has even greater promise.
Dec 13, 2022 Hoi Kong
Jeremy Waldron,
Denouncing Dobbs and Opposing Judicial Review, NYU School of Law, Public Law Research Paper No. 22-39 (2022), available at
SSRN.
Professor Jeremy Waldron is perhaps the world’s most influential critic of what he calls “strong judicial review of legislation” (SJRL). (P. 1.) This form of judicial review—found paradigmatically in the United States—gives to courts the final say on the constitutionality of laws that are subject to judicial review. Now, a court in a system of SJRL will, on occasion, decide a case in a way that a critic of SJRL will disagree with. How should such a critic respond to this situation? That is the question that Professor Waldron answers in Denouncing Dobbs and Opposing Judicial Review (Denouncing Dobbs). This SSRN paper (written after the draft opinion of Dobbs v Jackson Women’s Health was leaked but before the decision was published) is a rich exploration of issues in constitutional theory and an enormous contribution to the comparative constitutional law literature.
I begin and end this review with some remarks about Professor Waldron’s contribution to the field of comparative constitutional law. Comparative constitutional law scholars often contrast SJRL with what Professor Waldron calls “weak judicial review of legislation” (WJRL). (P. 7.) Professor Waldron illustrates this contrast through a discussion of the different institutional consequences that would flow from, on the one hand, a court finding a law to be cruel in a system of SJRL (the United States), and, on the other hand, courts arriving at the same finding in systems of WJRL (in the UK and New Zealand). Professor Waldron writes:
In the United States, a finding that a legislated punishment is cruel (and unusual) will lead to the legislation being struck down. In Britain, that finding (or a similar finding that a given legislated punishment is “inhuman”) may lead to a Declaration of Incompatibility, which is likely to be followed by a legislative amendment. In New Zealand, such a finding may lead judges to strain for an interpretation (often a pretty distant one), which is consistent with [section 9 of] the NZ Bill of Rights Act. (Pp. 7-8.)
This contrast illustrates a subtle and important point. According to Professor Waldron, one can make a judgment about whether a law imposing cruel punishment is constitutional, without embroiling “the person making it in the practice of SJRL. That judgment would make sense even if it were associated with WJRL.” (P. 8.)
An important consequence flows from this distinction between the fact of a constitutional judgment, and the institutional means and implications of exercising constitutional judgement. When faced with a law that is of questionable constitutional validity, a scholar, official, or citizen can answer two distinct questions: “’Is the measure constitutional?’ and ‘Who should decide the issue of constitutionality?’” (P. 10.)
Professor Waldron notes that when answering the first question, we (scholars, legislators, administrators or citizens) may be tempted to believe that we should rely on judicial decisions, for fear that if we didn’t, our reasoning would “have no focus, no determinacy, no univocality.” (P. 13.) Professor Waldron’s own analysis of the constitutionality of legislative restrictions on abortion suggests that this fear is unfounded. He examines the 1st, 3rd, 4th, 9th, 14th and 19th Amendments, and finds that “the Bill of Rights conveys a powerful principle of respect for individual privacy, freedom, and equality, particularly in matters of personal autonomy and gender equity.” (P. 14.) From this exercise in constitutional interpretation, he concludes that “the Constitution commands that women are to be protected in their control of their own reproductive capacities, at least up to the viability of fetal life and … it [the Constitution] requires also the most careful scrutiny of restrictions imposed after that time.” (P. 14.)
Professor Waldron concedes that this type of reasoning is associated with judges (and, indeed, that it is “used by” and was “invented for” them (P. 15)) but he insists that non-judicial actors can also engage in it. And, Professor Waldron argues, if this form of argumentation is deployed habitually in political debate, “it will over time resemble judicial reasoning less and less.” (P. 15.) He argues, moreover, that non-judicial actors undertaking this exercise need not aim to predict what courts would say about the constitutionality of a given law. According to Professor Waldron, one consequence of this shift away from judicial decisions is that we can concentrate on the substantive question of what makes a particular law constitutional or not, rather than on the orthogonal issue of whether a particular precedent should be upheld. On a comparative note, he acknowledges that stare decisis might have a role to play within a system of WJRL. Furthermore, invoking the work of Professor Michael Gerhardt, he gestures towards the possibility of a role for “non-judicial precedents”, or decisions by actors within institutions other than courts that can help settle questions of law “for subsequent decision-makers.” (P. 17.)
Professor Waldron then raises a pointed question: is a citizen who finds a law to be unconstitutional legally obliged to respect that law? The late Professor Ronald Dworkin posed this question in the context of a citizen who views a Supreme Court decision upholding a law to be incorrect, and who thus believes the law itself to be unconstitutional. Professor Dworkin’s answer was that an unconstitutional (and unjust) law “has no claim on our obedience at all.” (P. 23.) Yet, according to Professor Waldron, this answer comes at a cost to the settlement function of law. If we (citizens, officials, and judges) are free to disobey laws expressing constitutional judgments that we disagree with, then the legal system loses its ability to “settle on a view or set of views that can stand in the name of us all.” (P. 25.)
Professor Waldron’s own answer to the pointed question is that a citizen “is entitled to act on as well as arrive at her own judgment about unconstitutionality.” (P. 30.) In the aftermath of Dobbs, the particular forms this action will take—”counting votes, running primaries, raising money, organizing coalitions, holding opponents accountable, and mobilizing popular support for reproductive choice” (P. 31)—will be resolutely political, and will be settled in state legislatures. These forms of opposition to the Supreme Court’s decision are consistent with the views and commitments of a critic of SJRL, and they can be undertaken within a system of SJRL.
Professor Waldron thus responds to the challenge that he set himself at the beginning of this elegant and provocative article. Perhaps inevitably, he leaves questions unanswered and some of those questions open rich avenues for comparative constitutional law research. I close this review essay by pointing to one possible line of inquiry.
Comparative constitutional law scholars might note that the course of action Professor Waldron prescribes for the opponent of Dobbs is possible, in part, because of the particular nature of the United States’ federal structure. In other words, it is because of how the division of powers is constitutionally entrenched in the United States that—in states where abortion has not been made illegal—opponents of Dobbs can express opposition to the Supreme Court’s decision without engaging in direct legal disobedience and without, therefore, undermining the settlement function of law. Comparative law scholarship may point us to an example of an apex court in a unitary state (with SJRL) rendering a constitutional judgment that citizens—relying on their own constitutional reasoning—disagreed with. How might citizens and critics of SJRL in this kind of jurisdiction act on their own constitutional judgments, without undermining the settlement function of law within their constitutional state?
Cite as: Hoi Kong,
Democratic Constitutionalism, JOTWELL
(December 13, 2022) (reviewing Jeremy Waldron,
Denouncing Dobbs and Opposing Judicial Review, NYU School of Law, Public Law Research Paper No. 22-39 (2022), available at SSRN),
https://intl.jotwell.com/democratic-constitutionalism/.
Nov 14, 2022 Anthony Colangelo
Anyone familiar with the work of William Dodge and Chimène Keitner will expect nothing less than an expert, precise, and innovative piece of scholarship that deftly explains and advances the law. And so it goes with A Roadmap for Foreign Official Immunity Cases in U.S. Courts.
The authors join forces to both explain the doctrine of foreign official immunity and propose sensible and workable rules for courts to follow against a messy doctrinal background left in the wake of Samantar v. Yousuf, where the Supreme Court held that the Foreign Sovereign Immunity Act (FSIA) does not regulate suits against foreign officials; rather, such suits are governed by the common law, which includes international law.
The authors carefully explain and differentiate forms of immunity in U.S. courts, including status-based immunity (absolute while the individual holds office) and conduct-based immunity (applicable only to official acts but endures after the officeholder leaves office). The topic is of paramount importance to U.S. foreign affairs and headline grabbing cases involving human rights violations as well as sabotage, kidnapping, and political assassination, particularly to whether such conduct qualifies as “official acts.”
The authors argue that the Executive has the power to recognize the status of certain officials, like a head of state. From that recognition flows status-based immunity. But the rules of both status-based and conduct-based immunity are rules of federal common law created by courts that reflect customary international law. In this connection, courts should follow extant rules of international law in discerning both kinds of immunity.
In addition to laying out clearly the substantive law of foreign official immunity, perhaps the most salient contribution the Article makes is to argue that such immunity should be treated as an affirmative defense, not a question of subject matter jurisdiction. This makes sense, the authors argue, because “[s]uch a change in approach would answer some difficult questions about how foreign official immunity works in federal and state courts and account for the fact that such immunity can be waived.” To this reader, the argument is clearly persuasive in the pleading context.
Immunity is designed to avoid the burden of trial, and affirmative defenses can be pled before the answer. Moreover, the party with the most information—here the foreign official—ought to have the burden of proof as it would in mounting an affirmative defense. As Dodge and Keitner explain, courts can engage in limited discovery to sort out threshold factual issues, but avoidance of full-blown discovery and trial remains intact. Moreover, treating official immunity as an affirmative defense does not remove the plaintiff’s burden after Iqbal v. Ashcroft to plead plausible grounds for relief as an initial matter. They also make the case that findings of non-immunity ought to be immediately appealable similarly to avoid the burdens of full-blown discovery and trial for ultimately unmeritorious cases and because of the often big stakes foreign relations issues the cases raise.
The Article is obligatory reading for anyone interested in the law of foreign official immunity in U.S. courts. It is both descriptive and normative—laying out the law clearly and precisely and offering analysis that brings coherence to a massively messy and massively important area of the law.
Oct 13, 2022 Katharine Young
The political and conceptual disagreements of the past are never quite buried; their excavation can do much to inform the present. So much is true in human rights, as demonstrated by an illuminating new collection on Social Rights and the Politics of Obligation in History, edited by Steven L.B. Jensen and Charles Walton. The book draws out the debates and positions taken with respect to economic and social rights, from a long history of medieval Christendom in Europe to indigenous peoples in South America and Africa, and to the 20th century attempts at international distillation exemplified by the Universal Declaration of Human Rights, the human rights treaties, and beyond. This broad history is accompanied by a complex understanding of obligation – religious, moral, cultural, social, legal–which helps deepen our understanding of human rights.
The thesis of the book, with sixteen robust and varied chapters, is twofold. First, the history of human rights has been distorted by the neat chronology of generations, whereby “second generation” rights to social security, education, food, health care, housing, and labor protections, succeeded the first generation of civil and political rights, with only the initial generation offering a mature, serious, and enforceable version of what gets to be labelled human rights. (Later environmental and collective rights have often been termed the “third generation” of human rights, with even more distance; a “fourth generation”, focused on new technologies, has also been posited.) Here, the contributors contest both the chronology and the neat categorizations themselves.
The second thesis of the book is that disagreements about human rights will always be mistaken without due attention to the parallel debates about obligations. Obligations are central; they are also heterogeneous. The book’s study therefore forces a highly contextual understanding of the role of the state, the place of religion, the assumptions made about the market and the family, and the challenges of taxation, administration, debt, and corruption.
On the book’s thesis itself: it should be acknowledged that the generations theory, of Karel Vašák or TH Marshall, was always a heuristic; and that the obligations conundrum was never far from social rights debates. Yet what the book achieves, by the force of careful detail, is an enormously insightful take on just how narrow and cartoonish our history has been. These chapters are not advocacy pieces–misery is never far from ambition; oppression tracks closely with human solidarity or progress. Yet neither does the book offer yet another reproach to the apparent naivety of those struggling with new vocabularies of emancipation or new focal points of struggle. Instead, this collection pulls off a feat rarely achieved in such collections: its variety helps deepen, rather distract from, its thesis. And just as the generations are problematized, so too are other legal or status categories–think gift, contract or property–as the promise of justice and rights flails in the context of war, colonization, or global capitalist disruption.
This jot is too short to provide a full review of this collection of histories; in short, chapters by Julia McClure, Dan Edelstein, Charles Walton, Philip Kaisary, Stephen W. Sawyer and William J. Novak and Nicolas Delalande offer important new evidence about the contributions made by religious discourses, economic revolutions, and regulatory technologies prior to the twentieth century. Rosie Doyle, Laura Frader, Bernard Thomann, and Scott Newton each engage in sharp, and heavily contextual studies, of states grappling distinctively with post-World War II social questions and social exclusions, including the (very different) acknowledgement of race, gender and class in Mexico’s liberation theology and indigenous rights, France’s post-war family politics, Japan’s welfare society, and the Soviet agenda and execution of it.
In the final part of the book, Samuel Moyn, Mark Goodale, Meredith Terretta, Christian Olaf Christiansen and Steven L.B. Jensen, and Philip Alston all explore how post-war internationalism was carried out far beyond the recently-elevated contradictions between equality or sufficiency (even Moyn debates his former self on this point) or the tensions between liberal, social-democratic, socialist, or religious ideals (with Communist states actively undermining economic and social rights). This section also offers an implicit rebuke to those who would freeze the meaning of human rights to the Universal Declaration of Human Rights, as an assumed highwater mark.
In focusing on both rights and duties, Jensen and Walton (both historians, based at the Danish Institute for Human Rights and University of Warwick respectively) seek to fill a pervasive intellectual blind-spot. They acknowledge that the vectors of obligation can point in many directions, but do not thereby simply forfeit the conceptual enterprise. Instead, they have curated chapters which focus on different points in history and distinctive formations of state, empire, religion, civil society, corporations, families, and the individual. The mechanisms of law are highly varied; so too are whether private law or public law; judges or (more often) administrators; or justice or transformation offer the main responses.
For example, Julia McClure’s opening chapter of Part I begins with a 2016 case from Italy’s Supreme Court of Cassation, which made headlines when it exempted a homeless and destitute person from criminal sanction, after he had attempted to shoplift two pieces of cheese and some sausages. The man had taken the food, which amounted to 5 Euros, “in the face of an immediate and essential need for nourishment,” wrote the court, thus justifying the defense of necessity. (P. 30.) The case became emblematic of the failure of redistributive systems in the broader context of the European refugee crisis and the unpredictable activism of the courts. But as McClure makes clear, medieval tropes about obligations to the poor are deeply familiar. The rights of the poor have long provided the basis for avoiding prosecution, suspending penalties, and supporting active humanist claims upon the rich. Charity, for example, was not always associated with a “voluntary” obligation. This insight opens up a variety of legal implications, some spare and minimal but others more sweeping.
In addition to this intellectual blind-spot, Jensen and Walton fill a cultural and political blind-spot: they explore how notions of obligation can, more effectively than violence, recast the moral and cultural question of “who owes what to whom”. Notions of freedom, coercion, and dignity take on particular resonance. In opening up this question, the editors draw on cultural anthropologist Marcel Mauss, writing in 1925, whose analysis of the gift relationship is suggestive as a complex statement of obligation, when he exhorts more “care for the individual” with attention to each person’s “life, his health, his education (which is, moreover, a profitable investment), his family, and their future”. Alongside this call, Mauss sought “more good faith, more sensitivity, more generosity in contracts dealing with the hiring of services, the letting of houses, the sale of vital foodstuffs. And it will indeed be necessary to find a way to limit the rewards of speculation and interest.” (P. 18.)
These understandings give us not just layers of history, but layers of useful complexity. Too often, evaluations of rights rest on limited legal formulas of base entitlements and state duties, and less on the privileges, immunities, and liabilities that can (but often do not) arise from conceptions like Mauss’. Perhaps for this reason, rights analyses often seem unable to survive contact with the intellectual threads woven by biopolitics, communal design, theology, macroeconomics, or economic sovereignty. And yet the editors have embraced each of these perspectives, and more. The collection makes for rich and indispensable reading.
Sep 9, 2022 Erin F. Delaney
As we begin a new semester, during what seems to be a never-ending pandemic, with cultural and political tensions high, it is reinvigorating and humbling to be reminded of the privilege and responsibility we hold as members of the academy. In articles that dovetail beautifully, both Vicki Jackson and Elisabeth Alber highlight the influence and role of universities as institutions central to “both the democratic and the constitutionalist components of democratic constitutionalism” (Jackson at 159) and, in some circumstances, to the development of “positive peace,” or a “harmonised integrated society” itself (Alber at 53).
In her article, Knowledge Institutions in Constitutional Democracies, Vicki Jackson defines knowledge institutions broadly, including universities, the free press, certain government administrative offices, NGOs, and even courts and legislatures, in some instances. If, in the words of Tom Ginsburg and Aziz Huq, “the practical operation of liberal democracy requires a shared epistemic foundation,” then that epistemic base (or capacity) must be protected; if governments withhold or distort information to produce “correlated, population-wide errors,” democracy itself is at risk. Threats—whether political, economic, technological, or social—must be identified and addressed. Jackson is careful to note that legal protections to “secur[e] the foundations of knowledge institutions” (P. 163) are likely to vary depending on the institution in question. But she calls for close attention to the “knowledge ecosystem” of any individual state as something requiring “constitutional protection and effective self-monitoring” (P. 162), outlining many open questions and thus a robust research agenda for scholars. (Pp. 219-21.) Jackson’s article reminds comparative constitutional scholars to engage with the foundational functional underpinnings of constitutionalism—a call that requires contextualized and nuanced analysis.
Elisabeth Alber, in turn, highlights the ways in which knowledge institutions are relevant to questions of regional (or federal) integration, and in so doing, provides an excellent example of detailed and case-specific research. In her book chapter, Academic Freedom and Cross-Border Cooperation, Alber explores the role of institutionally autonomous “Higher Education Institutions” (HEIs) in the Euroregion of Tyrol-South Tyrol-Trentino.
Alber studies regionalism and democracy, and she has particular expertise in the challenges faced in (and by) South Tyrol, or the Autonomous Province of Bolzano/Bozen, the northernmost region of Italy. South Tyrol borders the Austrian Land Tyrol and the autonomous Italian province of Trentino. A trilingual region (Italian, German, Ladin), South Tyrol has been a disputed region and the site of an “internationalized” conflict since the 1946 Paris Peace Treaty, in which Austria was identified as a protecting power for German speakers in the region. As she explains, until the 1990s, “cross-border cooperation was politically contentious, as the Italian government perceived it as illegitimacy regional para-diplomacy.” (P. 51.) Notwithstanding these tensions, she outlines the ways in which HEIs have been able and continue to foster integration and cooperation.
Long before the formal designation of the Euroregion, universities in Austria (Innsbruck) and Italy (Padua) cooperated on courses, and Austria allowed South Tyrolean German and Ladin speakers access to university and benefits “on a par with Austrian citizens.” (P. 52.) Indeed, a 1983 agreement between Italy and Austria allowing for cooperation agreements between universities, created new curricula and new opportunities for bilingual education. The University of Innsbruck, in Austria, was able to create an Italian law curriculum, making it possible to study Italian law (at least in part) in German. These efforts resulted in “a true class of South Tyrolean legal experts, familiar with the borderland’s socio-legal identities…in both linguistic groups.” (P. 53.)
In the past decade, the identification of Tyrol-South Tyrol-Trentino as a Euroregion has further deepened the cross-border relationships in teaching and research. Alber explains that each constituent unit of the Euroregion has an autonomous HEI—Innsbruck, the University of Trento, and the Free University of Bolzano/Bozen—and that together they have been able to strengthen and develop integrated education, including the recently created Euroregio professorships, where the holders teach at all three institutions. Alber argues that the HEIs were integral in allowing for a true borderland identity to develop, contributing to the vitality of the region. The fact that the HEIs had institutional autonomy (an element of academic freedom in Alber’s definition) allowed them to experiment and overcome political barriers encouraging peace and cooperation.
But, of course, the idea of higher education as a contributor to democracy has a long history on both sides of the Atlantic. As Jackson writes in her piece, President Washington argued “for a national university to help citizens learn ‘to distinguish between oppression and the necessary exercise of lawful authority’.” And in the European Union, the success and experience of Erasmus+ highlights the role of education in contributing to a shared set of values. Begun in 1987, Erasmus—the EU educational exchange program—has been argued to contribute to European integration, the creation of a European identity, and even European solidarity. In short, knowledge institutions are indeed power, which must be both protected and wielded responsibly.
Aug 2, 2022 Jaclyn Neo
When one reads Franz Kafka’s The Trial, one is constantly struck by an uneasy sense of alienation and the weight of dehumanization that arises from the absurdity of the rules-based world that K. finds himself in. The slavish application of those rules by often faceless, compassionless, and definitely empathy-less bureaucrats fills the pages with dread. In this bureaucratic world, the personal is eliminated and replaced by the “tyranny of distance” between individuals and the state. Scholars like Cary Coglianese rightly point to the continuing need for human empathy within the system. In similar vein, Sofia Ranchordás’ new article, Empathy in the Digital Administrative State, captures this dehumanizing condition of bureaucratic distance and situates it within the modern digital context – where digitalization of the bureaucratic state, and the pursuit of efficiency crowds out empathy in administrative decision-making. Her critique is that “[w]hen digital technology is used as an intermediary for rights, law is often automatically applied without any room for empathy, regardless of the circumstances experienced by citizens.” This means that even small errors, which in the past may have been easily corrected or waived by an empathetic bureaucrat, may be amplified in effect under a digitized system which may impose significant (sometimes insurmountable) human costs for rectification.
Drawing from two scandals in the Netherlands and the United States, Ranchordás illustrates how administrative decisions made through algorithms, without the mediation of a human decision-maker, can result in severe injustice, some of which may be irreversible. In the case of the Netherlands, this was a fiasco under its childcare benefits scheme which affected more than twenty thousand families. Drawing on large databases and computational algorithms, the Dutch tax authorities wrongly accused citizens of fraudulently claiming child allowance since 2012. Demands were made for the repayment of tens of thousands of euros, causing severe financial hardship that spiralled into homelessness, divorce, and/or bankruptcy, with some even losing parental rights due to their inability to care for their children anymore. As Ranchordás points out, some of the charges were triggered by minor administrative errors, and what made it worse was that affected citizens were not able to navigate the complex bureaucratic systems or defend themselves before public bodies.
Similarly, in the United States, a flaw in an unemployment algorithmic decision-making system (seeking to ensure that unemployment checks were distributed only to eligible individuals) resulted in thirty-four thousand false accusations of unemployment fraud. Again the financial stress resulted in severe hardship for the wrongly accused, resulting in evictions, divorces, destruction of credit scores, and even homelessness. It was later shown that the wrongful fraud accusations were “digitally generated without human intervention or review, resulting in a 93 percent margin of error”. Furthermore, it was shown that there was still a 44 percent error rate even when the system included a human-in-the-loop. This was because the system was based on incomplete data, and failed to distinguish between intended fraud and administrative errors.
As Ranchordás points out, there was a certain sense in which “citizens with different backgrounds were unfairly treated because they were unable to navigate digital bureaucracy and automated decision-making. Moreover, the results produced by the automated systems were presumed to be correct, even though they later proved to be flawed.” The automated systems also did not provide an avenue to consider the personal circumstances of applicants. This meant that there was an overall “lack of scrutiny and accountability”, coupled with “excessive focus on anti-fraud policies and efficiencies”, which “made public authorities blind to the possible vulnerabilities of the system and its citizens.”
Ranchordás in particular points out the connections between vulnerability and likelihood to be caught out by an unempathetic system. Vulnerable individuals include first-timers, the elderly, persons with documented and undocumented disabilities, those with low literacy levels and/or limited digital skills, as well as persons with other cognitive limitations.. In addition, those from marginalized backgrounds such as immigrants are also likely to be most affected. In the case of the Dutch childcare benefits fiasco, it was notable that more than half of the wrongly accused families had immigrant backgrounds, which accentuated their vulnerabilities.
Therein lies the paradox of digital bureaucracy. It is aimed at making the system more efficient by reducing the need for human effort; however, in doing so, it risks substituting efficiency for fairness and productivity for justice. Digitalization resulting in incomplete databases, faulty algorithms, and over-reliance on automated decision-making without a clear and easy pathway for human intervention can cause significant and sometimes lasting hardships. Ranchordás employs the concept of “administrative empathy” both as a critique and a solution. For the latter, administrative empathy serves as a guide for “public authorities and judges when trying to understand different viewpoints, with enhanced humility.”
Administrative empathy would operate at two levels, in both the design and application of digitalization in decision-making processes. First, administrative empathy would apply, ex ante, to decisions governing the automation of public services and the design of digital government, including the creation of opportunities for meaningful contact with government and valid offline alternatives for citizens who cannot engage with digital technology. Secondly, administrative empathy would apply ex post following an administrative adjudication so as to allow public authorities to recognize mistakes and injustices in the prior processes. This should entail inclusive communication and design of platforms and institutions, and reducing distance between governments and citizens. In particular, Ranchordás highlights the need to adopt “a duty to forgive and meaningfully assist citizens facing exceptional circumstances”. This would include reversing the burden of proof so that it is the public authority and not the citizen which has to prove actionable errors detected by automated systems. There also needs to be more flexible engagement with citizens, drawing distinctions between mere administrative errors and minor incursions (e.g. missing a deadline), and more serious violations.
Another crucial point in Ranchordás article is the link between administrative empathy and government legitimacy. The ability to design and administer a bureaucratic system of decision-making that is efficient while also able to correct for errors and mitigate harshness is crucial for the citizens’ view of the government as legitimate. That the Dutch government had to resign over the childcare benefits scandal demonstrates, rightfully, the connection between the legitimacy of a democratic government and a well-designed and well-administered digital bureaucracy. This is not to say that digitalization cannot contribute to democratic accountability or enhance fairness, but human empathy remains crucial in mitigating the possible excesses of digital bureaucracy. Thus, Ranchordás’ articulation of administrative empathy, which demands the transformation of legal systems and policies from within, provides an important analytical device for critiquing as well as creating a more humane and more inclusive digital bureaucracy for the modern age.
Jun 30, 2022 Sam F. Halabi
As national and international commerce move increasingly to online platforms – which themselves tie together nearly every corner of the globe – the problem of dispute resolution when business goes awry or products cause injury has moved to a central position for scholars of private law, both domestic and international. In their careful and important work, Enforcing Inbound Forum Selection Clauses in State Court, John Coyle and Katherine Richardson address an important aspect of this problem: “inbound” forum selection clauses, i.e. those that require adjudication in the forum where the lawsuit is filed. Coyle and Richardson distinguish “inbound” forum selection clauses from “outbound” forum selection clauses – those that require adjudication in another forum. This distinction, they rightly note, is often missed by federal district courts and it is critical for analysis under Fed. R. Civ. P. 4(k), which in essence makes federal district court jurisdiction coextensive with the general law of personal jurisdiction of the state in which the federal district court sits (itself a quirk of political dynamics in the U.S. federal system). This article is one I like a lot, and I hope others active in the study and shaping of private international law do as well.
In addition to the important distinction they highlight in the law governing forum selection clauses – inbound and outbound – Coyle and Richardson undertake a heroic effort to 1) map the legal terrain of state law governing inbound forum selection clauses (there are four general regimes, with a majority of states following the approach adopted by the U.S. Supreme Court in The Bremen v. Zapata Off-Shore Co. concluding forum selection clauses are broadly enforceable absent an extraordinary showing of unreasonableness or unfairness); 2) describe the unfairness that results from current treatment (they begin the article with Google’s standard terms that require adjudication in Santa Clara County, California); and 3) propose solutions based on the size and sophistication of the party disadvantaged by the inbound forum selection clause.
Coyle and Richardson’s treatment is particularly timely in light of recent U.S. Supreme Court jurisprudence that has sought to remake the law of personal jurisdiction applicable to both domestic and international litigants. The U.S. Supreme Court has signaled 1) that pre-selected fora are favored, therefore allowing large corporate plaintiffs to set the terms of litigation (not only forum as it happens, but also law and arbitration) and 2) large corporate defendants are generally amenable to suit only where they are incorporated or have a principal place of business, the fora for which have also contracted over time.
The article is divided into “law on the books” and “law in action”, the latter of which also involves methodological rigor: The authors identify 283 cases comprised of every modern published and unpublished case decided prior to April 2020 in which a defendant challenged the enforceability of an inbound clause in state court. The authors find enforcement in approximately 80% of those cases and analyze some sub-phenomena resulting from state-level judicial and legislative action. Key insights from this analysis are the grounds that have prevailed in challenging enforcement of inbound clauses including failure in the consent process, lack of specificity, floating clauses, lack of connection to jurisdiction, and public policy.
Coyle and Richardson advocate three reforms: voiding of those clauses in contracts of adhesion with unsophisticated parties, precise components of notice including specificity and a “single forum” requirement, and lowering the standards for enforceability set forth in The Bremen. While the first of these has intuitive appeal given the abuses Coyle and Richardson have identified, it also appears the least likely to be achieved given trends in both state and federal courts. The latter two appear more promising, even if suggested in generally adverse jurisprudential circumstances. They note that the Supreme Court of Utah has adopted a “rational nexus” approach that appears to embody a change they welcome, and the Florida Supreme Court interpreted its long-arm statute so as to exclude “consent alone” jurisdiction, but those are relatively rare examples in a terrain characterized by deference to written choice-of-forum clauses and a federal judiciary that appears to often mistakenly blend inbound and outbound inquiries.
Coyle and Richardson have undertaken a valuable exercise in explaining a phenomena that is only likely to grow and importance, and have proposed well-reasoned and supported reforms that state judges, legislatures, Congress, and the federal judiciary should consider as well as scholars of private international law.
May 30, 2022 Verity Winship
Is criminal prosecution a tool of foreign policy? Should it be? The US arrest of Huawei’s CFO and US indictments of Russian hackers, Venezuelan President Maduro, and others make these particularly timely and worthwhile questions. Steven Arrigg Koh’s article, The Criminalization of Foreign Relations, provides a response, ultimately arguing for a constrained role of “extraterritorial law enforcement policy” in foreign relations.
The article’s main move is to consider criminal actions as part of the classic list of foreign policy tools alongside “diplomacy, cooperation and association agreements, trade, economic sanctions, military force, and the use of foreign aid.” (P. 739.) The author then makes the case for a cabined and depoliticized use of the tactic. Criminal actions, he suggests, should be confined to contexts that take advantage of their basic characteristics: They are individualized, retrospective, involve lots of process, and have high stakes, with incarceration as a possible outcome. (Pp. 757–58.) And they are “adjudicated before a neutral branch of government in adherence to a broader rule of law.” (P. 758.)
The article is part of an ongoing project, one that raises and wrestles with urgent questions beyond what any one article can resolve. This and an earlier publication, Foreign Affairs Prosecutions, follow a rich thread that draws on the author’s experience as a prosecutor as well as his other research.
The work is at the underexplored intersection between criminal law and foreign policy. As the author points out, the two literatures do not always share basic assumptions. Crucially, criminal law literature views overcriminalization as the problem, while international law scholars are “largely sanguine” about the involvement of criminal authorities in the form of international criminal courts. (P. 741.)
The Criminalization of Foreign Relations works at two levels. It does not shy away from big underlying problems. It addresses, for instance, the eroded faith that criminal justice is separate from political motivations. Elsewhere in the piece it asks fundamental questions about the purpose of criminal law. (P. 782.)
And yet the article also looks at the fine-grained details, particularly about federal prosecutors. One intriguing example is the DOJ’s “China Initiative.” The program was initiated in 2018 to “’reflect[] the strategic priority of countering Chinese national security threats and reinforce[ ] the President’s overall national security strategy.’” It was still in place as of the article’s writing.
The article also takes us even deeper into the structure of federal prosecution in its discussion of the “national and international security coordinators,” AUSAs trained on “transnational and international issues arising in U.S. federal criminal prosecution.” (Pp. 780–81.) The article’s most compelling prescriptions also operate at this level, on the ground. (Pp. 778, 781.)
The article sorts between good and bad uses of extraterritorial law enforcement policy. The cautionary tale is the “global arrest game”—think of the controversy over Huawei’s CFO. (P. 754.) The paper could highlight more systematically situations where coordination works. (My own work on coordination in civil enforcement may motivate my interest.) One good use is when all the countries involved define the conduct as criminal or even seek criminal action against the particular target. Akin, maybe, to the idea of “dual criminality” in extradition. (Pp. 762, 786.) Is that the only good use? What, if anything, falls between enforcement cooperation and playing the global arrest game?
Corporate versus individual defendants might also be an organizing axis. Again, the author touches on this briefly (Pp. 752–53), but the categories might be able to do more work in sorting good uses from bad.
The role of criminal prosecution beyond US borders is complicated. And law review articles do not always lend themselves to writing that does not offer a single shiny silver bullet, but rather is ultimately an argument for restraint. The Criminalization of Foreign Relations has a laudable goal – to develop “a principled role for U.S. extraterritorial law” (P. 787) – and an approach that combines expertise with willingness to think about essential underpinnings.
