Faculty Chapters

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  The Right to Strike and Contestatory Citizenship

  Cynthia Estlund and Alan Bogg

  Is the right to strike a fundamental right? If so, what are its philosophical foundations? This chapter argues that the right to strike is a fundamental right resting upon three basic liberties: freedom from forced labour, freedom of association, and freedom of expression. In so doing, it challenges and rejects two dominant strategies in arguing for a fundamental right to strike: (a) that the right is derivative of a single basic liberty; (b) that the right is derivative of a right to collective bargaining. The contours of these basic liberties are developed using the republican ideal of non-domination and contestatory citizenship. Having defended a republican account of the philosophical foundations of the right to strike, the chapter then uses that framework to explore how the basic regulatory questions of a ‘right to strike’ have been addressed in Canada, the UK, and the US.

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  What Is Socialist About Labor Law in China?

  Cynthia Estlund and Aaron Halegua

  The core of China’s modern labour law regime—namely, labour standards enforced by regulatory agencies and private litigation—largely resembles that of modern market economies. But two of its institutional features are more distinctive: First, China’s constitutional commitment to ‘democratic management’ of enterprises; and second, the Party’s insistence on exclusive control of the collective representation of workers through the monopolistic All-China Federation of Trade Unions. The first seems to reflect ‘socialist’ commitments, but is very weakly institutionalised. The second may or may not be ‘socialist,’ but is deeply entrenched and assiduously maintained. The suppression of independent worker organizations reflects China’s intense preoccupation with ‘stability maintenance,’ and accordingly shapes nearly every aspect of China’s contemporary labour regime, including mechanisms for processing individual labor disputes as well as the response to wildcat strikes and the system of collective consultation. The chapter concludes by reflecting on the definitional question posed in its title.

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  Deliberation and Citizen Interests

  John A. Ferejohn

  The “folk” democratic tradition in the United States sees citizens not only as the unique source of political authorization but also as competent to pursue and protect their interests at the ballot box. Democracy’s commitment to equality requires that each person’s interests and views are entitled to equal consideration. I argue that equal concern for interests has some priority over equal respect for opinions and that plausible institutional realizations of deliberative democracy must reflect this priority. This does not mean that peoples’ opinions or votes can be ignored but that deliberation must aim to educate or “refine and enlarge” public opinion.

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  Articles 14-24

  Franco Ferrari

  The second edition of this seminal text provides an authoritative 'article-by-article' commentary on the CISG. Moreover, it goes further than existing literature by taking account of those various legal settings in which the CISG operates. Strictly following the structure of the Convention itself, it examines specific topics such as E-Commerce and the CISG and comparative texts such as Unidroit Principles of International Commercial Contracts and the European Principles of Contract Law. The Incoterms are also dealt with in detail. With a truly global and stellar line up of contributors, this is an invaluable tool for all lawyers practising in the field.

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  Can ASEAN Achieve a Single Market with National-Only Competition Law?

  Eleanor M. Fox

  Ten Southeastern Asian nations have formed an economic community. While the free movement rules are community-wide and the nations aspire to achieve a single market, there is no present plan for a community competition law. Can the nations achieve a single market without a common competition law? To answer the question, the paper examines, first, paradigmatic single-market competition rules and the work they do. Second, turning to the world, which has no international competition law: What problems are posed by the absence of an international framework and how well can they be solved in its absence? Third, it reflects on models other than community-wide competition law that share the space between tight integration of markets and loose coordination of nations and their competition authorities. Fourth, back to ASEAN, it identifies the particular problems posed by the absence of community competition law, and asks two questions: How much can the ASEAN nations solve with 10 national competition laws plus cooperation and coordination?, and: What principles and initiatives are most critical in helping ASEAN approximate a single market without community competition law?

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  Democracy and Markets: A Plea to Nurture the Link

  Eleanor M. Fox

  Democracy requires markets, just like democracy requires free speech. For many years the US antitrust laws appreciated the link and caselaw acknowledged it, but those traces have all but disappeared from US antitrust caselaw today. The European Union embeds democratic values, and its competition law reinforces them with principles of openness and access. Transitional and developing countries acknowledge the link in attempting to root out economic control by vested interests and privileged enterprises. The surge of nationalism in the world today threatens democratic principles economically and politically, increasing the importance of nurturing the link between democracy and markets.

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  Peculiar Institution: America’s Death Penalty Today

  David W. Garland

  This chapter discusses capital punishment as an issue in the sociology of social control. Using the facts of historical and geographical variation in the use of death penalties, it seeks to explain why capital punishment has largely disappeared in the West and why the USA remains an important exception to that pattern. The chapter examines questions of institutional design and uses form as a guide to function. America's capital punishment complex is defined as the whole set of discursive and non-discursive practices through which capital punishment is enacted, evoked and experienced—exhibits a peculiar institutional form. The chapter argues that analysis of that distinctive form and the processes that produced it helps explain America's retention of capital punishment and provides clues regarding its institutional logic and contemporary social functions. Over the decades following the National Association for the Advancement of Colored People (NAACP) litigation, the Supreme Court effectively reinvented the death penalty in America.

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  The Concept of American Exceptionalism and the Case of Capital Punishment

  David W. Garland

  This chapter aims to distinguish the various meanings of American exceptionalism and clarifies what we might mean when we invoke this phrase. It also discusses what the American exceptionalism concept implies for the study of crime and punishment. To begin, the chapter first presents a preliminary discussion on the concept and its meanings. It then examines American exceptionalism by means of a close analysis of a specific penal phenomenon that is often invoked as proof that the United States is, indeed, exceptional: America’s retention of capital punishment into the twenty-first century. Here, the chapter argues that while America’s current stance on capital punishment may be anomalous in international terms, it is not an instance of American exceptionalism.

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  The Rule of Law, Representational Struggles, and the Will to Punish

  David W. Garland

  It is a genuine pleasure to comment on Professor Didier Fassin's Tanner Lectures, not least because he addresses questions of punishment with an intellectual and moral seriousness that is quite rare. I especially like the fact that he seeks to ground his normative analysis within an empirical understanding of penal practice—an approach that is, for me, a fundamental requirement of serious, critical work. If, in what follows, I offer criticism of Fassin's claims and conclusions, these disagreements should be understood not as fundamental objections but as so many attempts to refine a contribution that I consider important and original. I will direct my comments to the critique of punishment that Fassin has been developing over the course of his two lectures. That critical analysis is, I would say, directed less to “the will to punish” of his title than to the unlawful or illegitimate uses of violence, repression, and penal power on the part of state officials, whether police, prison staff, or judges. (Had he been undertaking his research here in the U.S., he would undoubtedly have included prosecutors, above all, federal prosecutors, in his critique, since they too wield power in an excessive and largely unrestrained manner.)

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  The Due Process Revolution in Juvenile Court—New York and the Early Years after Gault

  Martin Guggenheim

  In most juvenile courtrooms before Gault, no lawyers appeared; neither prosecutors nor defense counsel. Probation officers or other court personnel filed the petition or other document that placed the matter on the court's docket. Focusing solely on the procedural flaws of juvenile justice was a sound strategy, deliberately employed by Norman Dorsen, the American Civil Liberties lawyer who argued Gault. Charles Schinitsky's ultimate conclusion about Children's Court was straightforward: it was built on the premise that a kid is not a full individual with constitutional rights. In New York City, an office was established to represent children in the newly created Family Court. It would have the responsibility of being the attorney of record on behalf of all indigent accused juvenile delinquents. Thus, by 1976, some of the bloom of Gault was beginning to fade in New York. The retrenchment in the Supreme Court in Schall was hardly the first blow to juvenile justice advancement in the post-Gault era.

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  Intellectual Property and Competition Law

  C. Scott Hemphill

  This chapter surveys the intersection of competition law—or antitrust law, as it is known in the United States—with intellectual property (IP). It examines whether and how IP rights alter the substantive scope of antitrust law, either by operation of statute or as a matter of economic policy. It discusses a wide variety of antitrust claims, alleging collusion, exclusion, or both, that have been raised against IP rights holders. The examples are drawn mainly from the United States, although European developments are also included where relevant. The analysis supports the conclusion that, beyond a rights holder’s core ability to assert a valid, infringed right against a rival, IP restricts antitrust law less than one might expect. Moreover, the restrictions that do exist are often subtle.

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  How Democracies Perish

  Stephen Holmes

  The populist venom being directed these days at politically vulnerable universities speaks against pejorative resort to the word academic. Yet the currently beleaguered state of liberal democracy is definitely not an academic subject, or at least not only an academic subject. It is also an existential one, involving some of the most dismaying and unnerving trends of our time, with potentially ominous consequences for our personal and collective lives. During the Cold War, many Western thinkers were tormented by the thought that liberal-democratic societies could succumb to totalitarian temptation. Jean-François Revel' s 1980s bestselling How Democracies Perish was typical of the genre. Then, in the hinge year of 1989, these dark clouds dissipated virtually overnight. From staggering helplessly at death's door, it seemed, Western-style democracy not only recovered its health but became joyously triumphant and even, according to one celebrated pundit, ideologically uncontestable. But the rebound was less enduring than had been hoped. After the Iraq War, the financial crisis of 2008, the derailing of the Arab Spring, economic dynamism in China where pro-democracy protesters are routinely charged with subversion, electoral victories of xenophobic authoritarians in East Central Europe, increasing support for anti-immigrant and anti-EU movements in Western Europe, the senseless Brexit referendum, the fraying of the Atlantic alliance, and the upset political victory of the forty-fifth president of the United States, the prospects for liberal democracy are once again in doubt. The unthinkable is not yet probable, but neither can it be casually ruled out. Wherever we are headed, we need to look seriously again at the conditions under which democratic government, hollowed out from within, might gradually sicken and suddenly die. To broach the manifold infirmities and potential transience of democratic self-government, I begin with a revealing anecdote and a derivative generalization. During an electoral campaign in Brazil, Albert Hirschman once sighted a billboard that announced: “We are tired of austerity, we want promises.” The facetiousness of the slogan should not distract from its far reaching implications. In reality, much of modern politics is about promising, disappointing, and managing the negative consequences of bitter disappointments. All governments promise and disappoint. One of the signal virtues of liberal democracy is its uncommon facility at mitigating the fallout of political discontent. Mitigation means, most importantly, preventing civic frustrations in the face of unpopular policies and deteriorating conditions from engendering violent confrontations between lethally armed and ideologically polarized citizens or between infuriated citizens and the forces of public order. This is a crucial task, because blood-splattered streets can be a breeding ground for that justly feared authoritarian temptation, precipitating the ruinous breakdown of democracy. A multiparty representative system, where challengers have a reasonable chance of removing and replacing incumbents, may or may not align the preferences of politicians with the preferences of voters. It may or may not produce good governance and economic prosperity. And it may or, may not be at peace with its neighbors. But periodic elections in a pluralistic democracy ideally fulfill another function that they often perform quite well and that helps account for much of democracy's indisputable political appeal. They ensure domestic tranquillity despite the frequency of buyer's remorse or the all-too-common disappointment of citizens in the performance of their own popularly elected rulers. The very possibility of l’alternance, the expectation that a shadow government or rival governing team has a good chance of ousting the incumbents in an upcoming election, subsidizes patience with the deficiencies of the current administration. The mere possibility that the Outs may replace the Ins can dispel the nightmare of having to stare into the faces of an unchanging leadership tiresomely addressing citizens with dubious honesty for the indeterminate future. This is true even if, as is likely, the new incumbents turn out, after their proverbial honeymoon, to be just as disappointing as their predecessors. Well-organized democracies, in other words, systematically channel public disgruntlement inside the system rather than allowing it to fester unaddressed and eventually erupt onto the public squares, where minor clashes can accidentally escalate into uncontrollable violence. One of the principal functions of representative government, according to Max Weber, is to “break the irregular rule of the street.” Rather than burning Dumpsters at intersections, discontented citizens can be lured into organizing for the next elections, expending the fuel of political grievance and letdown on party-political competition, so long as the system is not blatantly rigged against them and they have a reasonable chance of prevailing in the future.

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  Europe—What’s Left? Towards a Progressive Pluralist Program for EU Reform

  Robert L. Howse

  A transnational federation that precludes war and orders the relations between peoples through law and rights has been a liberal progressive dream since Kant’s Perpetual Peace. Kant’s evocative essay gave little institutional detail about how the federation would work, but implied that such a union was the logical outcome, on one hand, of the idea of cosmopolitan right, and, on the other, of the historical experience of violence. Some have purported to see such a project imprinted on governance constellations such as the United Nations or its predecessor, the League of Nations. In these cases, it soon became clear that the legal constructs did not depart from Westphalian sovereignty in their real operation (except perhaps the UN Security Council, but in an ineffective manner because implementation of its decisions still depended entirely on state sovereignty). For many, the European Union, which began with the European Steel and Coal Community, then morphed into the European Economic Community (EEC), then the European Community (EC), and finally the EU, is the first and original example of a transnational federation. From its founding, the project of European integration was intended as a response to the most brutal and destructive outbreak of violence among the European nations: World War II and the Holocaust. There is little question that the most compelling telos of union was to connect the peoples and states of Europe in such a way as to turn such violent hatreds into a thing of the past. The project began through legal guarantees of economic mobility-free movement of goods, services, capital, and persons. But even from the early years of interpretation by the European Court of Justice, it was clear that the European treaty of union created rights for citizens that were directly enforceable in the European Court, the judgments of which would be directly applicable in the Member States; the treaty thus had a kind of constitutional dimension embedding a form of transnational legality that departed from Westphalian interstate international law in creating a direct and meaningful relationship between the citizen and the transnational order. This seemed to go further than anything yet devised in the direction of what Kant had called cosmopolitan right. In addition, as became ever clearer as the union evolved, and the ambit of the treaty expanded, the EU project not only constitutionalized, in effect, certain rights but also entailed the division of sovereignty that for many federal theorists is the true essence of federalism. Thus, certain competences were assigned exclusively to the European institutions (such as external commercial trade policy and competition policy), and others were to be exercised jointly. On the other hand, even though the union had a Parliament, the exercise of the union-level competences was achieved through a pooling or joint exercise of national sovereignty, intergovernmental decision making in the European Council above all. Thus began an endless debate among scholars of federalism as to whether, in truth, the EU was a federation or a confederation. Such discussion has crosscut controversies about whether the EU is or should become a constitutional polity in the full sense—is this possible with- out Europe having or being a single “demos,” the will of which can find direct expression in European governance through the European Parliament? As the EU level competences have expanded into many fields of policy, including labor and social standards, environment, and food safety, the relative weakness of democratic legitimacy (that is, in comparison to national institutions involved in these kinds of policy making) has become apparent, creating a concern with the democratic deficit. National governments generally have an ideological orientation of some sort. But is it really possible to conceive of the EU as a governance space that is ideologically neutral, or blind? In the post–WWII generation that was involved in getting the European project going, and also rebuilding the European polities as liberal democracies, there was a rather solid consensus on the goal of preventing another outbreak of murderous hatred among European peoples, as well as facilitating the building of stable mixed economies and democratic political institutions within European states. The original blueprint of the four freedoms plus intergovernmental cooperation and coordination on a range of commercial and industrial policies was an authentic expression of this consensus. It was able to accommodate most of the ideological spectrum—leftists like Alexandre Kojève were able to imagine the European project as a form of socialist internationalism; liberals as a stage toward the Kantian ideal of transnational federalism; and moderate nationalist conservatives a la De Gaulle as “L’Europe des patries”—in which the European nations would, despite being caught between the two superpowers, nevertheless realize great things not in competition and rivalry with one another but through concerted action.

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  Leo Strauss: Humanity and Political Realism

  Robert L. Howse

  Around the time of the Iraq War, a number of books and articles emerged attributing the foreign policy outlook of the George W. Bush Administration to neoconservatives inspired by the émigré German–Jewish political philosopher Leo Strauss. Strauss was thought to be the intellectual source for a foreign policy vision animated by a moralistic quest to impose US values on the rest of the world, if necessary by military force; Strauss, and his neocon disciples, such as William Kristol were seen as arch-enemies of constraints on US unilateralism through law or multilateral institutions. A different and contrary view of Strauss has emerged in the work of a range of scholars, some of whom can be placed on the ‘isolationist right’; Strauss is seen as a realist rather than a moralist in foreign policy, and perhaps an adherent to political realism as such.

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  A Magna Carta for the World? The Constitutional Protection of Foreign Subjects in the Age of Revolution

  Daniel J. Hulsebosch

  Magna Carta appears in the strangest places. Mythical figures often do. Broad relevance, authority, and persistence are central to their mystique. Yet omnipresence also strains credulity. For lawyers, at least, a legal myth’s power is usually taken for granted, and the pertinent questions concern what the myth means, whether it applies to the problem at hand, and, if so, how. Historians, on the other hand, ask questions of epistemology and effect rather than exegesis: Why did those historical actors think it was useful to invoke the myth at that moment, what work did they want it to accomplish, and did they succeed? Why, for example, did American judges and lawyers invoke one chapter of Magna Carta, what here is called ‘the merchants’ chapter’, in one of the earliest cases to reach the Supreme Court? The short answer is international credit—in all senses of that term. In the early 1790s, the United States Supreme Court tried a case between the state of Georgia and a foreign British merchant who had extended credit to a colonist before the American Revolution. The dispute began in 1791 when the British creditor, Samuel Brailsford, sought to collect that seventeen-year-old debt and sued his debtor, James Spalding, directly in the federal circuit court. Brailsford had sold Spalding a ‘cargoe’ of slaves in 1774; in return Spalding had tendered a bond valued, in 1791, at more than seven thousand pounds. Brailsford’s attorney pleaded in the federal circuit court that the plaintiffs were ‘aliens, and subjects of his Britannick Majesty’, providing jurisdiction in the federal circuit court on the basis of its alienage jurisdiction. The substantive rule of decision, according to the plaintiffs, was the Treaty of Peace of 1783, which provided that neither side would place ‘lawful impediments’ in the way of debt collection. Despite its formal equality, everyone knew that this was a one-way provision: Americans owed millions to Britons stemming from pre-revolutionary mercantile debt, not vice versa. The debtor (and Georgia) argued instead that the state had confiscated all debts owed to Britons, whether it had actually collected the money owing from patriot debtors or not. Confiscations completed during the war, they argued, were not the postwar impediments envisioned by the treaty-makers. Therefore, Georgia interpleaded in the cause to supplant the British creditor, claiming that it owned the debt. A case between a British creditor and an American state commencing in 1791 and dealing with the messy legal aftermath of the revolution seems an unlikely place to find Magna Carta. But there it is: the parties debated the relevance of the second part of the merchants’ chapter: safeguarding foreign merchants and their goods during war, unless their own government targeted resident English merchants. In other words, no harm to enemy aliens except as retaliation. Tit for tat. Attorneys for the creditor and at least two judges invoked the merchants’ chapter to help find that Georgia—despite the state’s protests—had not confiscated British debts during the war. They attributed to Georgia’s wartime legislators a desire to treat British creditors reciprocally, as American creditors were treated in Britain, and supposed that the merchants’ chapter had influenced the legislators’ decision. In fact, Britain had not confiscated debts owed to Americans. Ergo, Georgia refrained as well. The idea that reciprocity was a fundamental mechanism of international (and interpersonal) relations became something like a social science axiom in the eighteenth-century Enlightenment. It was central to this federal debt case, the participants’ reading of Magna Carta, and many Americans’ understanding of their constitution. Attorney General William Bradford argued that the merchants’ chapter stood for the proposition ‘[t]hat the faith of Commercial intercourse ought not to be violated’. What was at stake was not just past promises. The vindication of old debt contracts would, he argued, also ensure the ‘Prospect of future Credit’. Scrupulous repayment would signal to potential creditors across the Atlantic that, in the United States, credit was safe. In reply, the debtor and state argued that the laws of war recognized the power of confiscation, regardless of what Magna Carta might prohibit in Britain, and the sovereign state of Georgia had exercised that power. The law of nations was the relevant source of law, not the medieval fundament of England’s ancient constitution.

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  Collective Action and Class Action

  Samuel Issacharoff

  Over the past 25 years, class actions have emerged as a central feature of Canadian law. The conceptual heart of these class actions comes from the Ontario Law Reform Commission's 1982 Report on Class Actions, particularly in common law Canada. Drawing on the experiences of the early-adopter provinces of Quebec, Ontario and British Columbia, the Report sets out the objectives of the modern class action: judicial economy, access to justice, and behavior modification. Today, each province except Prince Edward Island has enacted comprehensive class proceeding a legislation,--while Prince Edward Island relies on it indirectly, as the Report's logic was nationally enshrined by the Supreme Court in Western Canadian Shopping Centres, Inc. v. Dutton. From my personal vantage point in the U.S., it is difficult to argue with the stated premise of the Ontario Report: “No longer are we faced with only a single individual or small business against whom we have some grievance. Trite as the observation necessarily is, it bears emphasizing that we live in a corporate society, characterized by mass manufacturing, mass promotion, and mass consumption. … The mass production and sale of an inherently defective product has the potential to touch all consumers of that product. Misleading advertising by a large corporation can have province-wide or even national implications. Large scale pollution of rivers or the atmosphere can affect countless persons over a long period of time. Sophisticated securities frauds, discrimination in hiring, illegal strikes, and many other types of unlawful conduct have direct and indirect ramifications for all of society. And in the wake of such misconduct, the individual is very often unable or unwilling to stand alone in meaningful opposition.” Without wishing to compromise my ability to visit Canada again, I cannot let pass one concern. The reasoning in the Ontario Report points to the need for collective redress, as the term is now used in Europe. But as a defense of the class action, there is a fundamental incoherence in relying on the stated premises of efficient use of resources, access to justice, and behavior modification. Accepting that the scale of harm and the lack of individual redress are all reasons requiring collective action, there is nonetheless the question, about why any of these insights point to class actions. The ability to externalize the cost of conduct, as with a polluter or a mass marketer who may realize substantial gains from many small-scale frauds, is the classic problem that explains why private ordering through contract is insufficient to certain unwanted conducts. Policing the integrity of market transactions or preventing environmental depredation are examples of classic public goods, and the problem of the inability to internalize private gains from the creation of public goods is the reason that public good production has to be collectivized. In turn, the need for collective security forms the standard justifications for state-level activity. Class actions are not merely forms of collective action that overcome the limited ability of individuals to protect their rights through contract or private legal action. Rather, class actions are private sources of collective authority, even if formed pursuant to legal rules governing class certification and even if, as in Quebec, they may be eligible for formal public subsidies. The question that requires some explanation is not the need for collective redress, but rather the reliance on private ordering through court-supervised class actions rather than direct regulation by state authorities. Put simply, if it is public goods we seek, why not use public authority to obtain them? The conceptual limitation is even more pronounced given the lead role of Quebec in the development of class action law, and now in its implementation. Quebec is, after all, not perfectly part of common law Canada and is a significant outlier in the civil law world in its eager reliance on class litigation rather than state decrees to achieve regulatory economies of scale. As a general matter, common law jurisdictions incorporate private collective actions more readily than civil law jurisdictions, largely as a result of greater comfort with judge-made law. Put another way, could not the Ontario Report be the prelude to the creation of a more powerful regulatory body, perhaps akin to the objectives of the Consumer Finance Protection Board in the U.S.? The paradox is not the need for collective enforcement but the choice to use private collective enforcement through the class action rather than through the state regulators. Nor is the enforcement paradox unique to Canada. All societies already possess an institution designed to overcome collective action barriers to common security and the proper allocation of burdens and resources: the state, in its most basic, Hobbesian functions. The class action offers an alternative form of collective organization to the state-without the elements of popular participation, political consent, and electoral accountability that justify governmental authority in a democracy. That delegation of collective authority to an institution without the democratic pedigree of the state demands some justification. In what follows, I will trace the development of class action law in the U.S. from the perspective of the relation between the class action and state regulation. I do not take up the particular mechanisms of class creation in Canada, nor the details of the procedural requirements for the class. That task is best left to Canadian observers better versed in Canadian law. Rather, the aim is to show that the relation between private and public ordering is a central theme in the development of class actions thus far. For Europeans, even after numerous EU-level pronouncements on the need for collective redress, the ability to license private enforcement, including the need for a profit motive for private conduct, has resulted in efforts that are mostly stillborn. In the U.S., by contrast, the generalized and at times pathological distrust of the state made the turn to private enforcement an easier undertaking.

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  Comparative Constitutional Law as a Window on Democratic Institutions

  Samuel Issacharoff

  This chapter approaches comparative constitutional law from a court-centered perspective rather than a rights-oriented perspective. The author discusses the role of new constitutional courts in forestalling a return to an autocratic past and in acting as the handmaidens of a new democratic order, by considering court creation in a broad swath of European countries and South Africa. The chapter pays particular attention to the specific role that the Constitutional Court in South Africa played in moving the country from a provisional to a final constitution. Next, the author reviews the role of constitutional courts in new democracies in aiding quick transitions to basic democratic governance before constitutional drafters are able to reach full agreement on and flesh out the specifics of constitutional compromise. Finally, the chapter assesses how courts in Argentina, Columbia, South Africa, Germany, India, and Israel have survived confrontations with political power with varying success.

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  Populism Versus Democratic Governance

  Samuel Issacharoff

  The current populist wave presents an existential challenge to democracy. Populism claims to be the true expositor of the will of the people, enabled where it can through the electoral conquest of government office. An engaged electoral majority claiming its due appears as both the realization of democratic aspirations and its demise. It is a short step from the will of the people to the tyranny of the majority. Undoubtedly, the rise of elected governments is the historic legacy of the period after the fall of the Soviet Union. Using a relatively austere metric of whether the head of state and legislature are elected, Freedom House captures the dramatic transformations at the end of the twentieth century. In 1987, there were only 66 countries that were considered electoral democracies. By 2003, there were 121 electoral democracies, a number that has remained more or less stable, with the most recent figure being 123 countries that can claim a head of state and legislature elected through substantially free and fair elections. The first cut inquiry is consistent with a parsimonious account of democracy as being governance by an elected head of government, chosen by at least a plurality of the population under stable rules of selection and broad eligibility for the franchise. Such a definition would embrace both parliamentary and presidential systems, it would allow for plebiscitary powers as in Switzerland, it would tolerate requirements for plurality versus majority vote for officeholding, and it would accept a host of limitations of the franchise based on citizenship, age, incarceration, and so forth. Such a definition would even allow for a nominal head of state that is not elected, as with the Queen's authority in Australia. For the most part, such a standard account of democracy is not necessarily incompatible with populism. There is an authoritarian streak to both left- and right-wing populist movements, which, with alarming frequency, threatens some of the preconditions of democratic governance. Populists tend not to tolerate opposition parties; they tend to use police and prosecutorial power against adversaries; they tend toward suppression of dissident speech, either through curtailment of access to the media or through legal retaliation; they tend to push the boundaries of executive unilateral authority. Certainly, questions of intensity and degree may take the Venezuela of Nicolás Maduro or the Hungary of Viktor Orbán outside the boundaries of democracy. But elements of aggressive use of incumbent power are seen in many regimes that still function as democracies, even if beleaguered ones at times. Thus, unfortunately, the formal processes of governmental selection tell only part of the story. While the number of electoral democracies has nominally remained high, the number of countries that afford relatively free political rights to opposition groups, rival political parties, minorities, and others seeking to dislodge the incumbent regime is much smaller. Only eighty-seven countries are deemed “Free” by Freedom House in affording the political rights associated with democracy and ensuring acceptable levels of transparency and noncorruption in government. The Freedom House data present a simplified picture of elections as a matter of form in terms of elected heads of state and as a matter of substance in terms of the institutional attributes of democratic governance. The focus on political freedoms and transparency of government hearkens to the basic Schumpeterian notion of democracy as fundamentally a system of retrospective accountability by which an informed populace can remove from office those who have lost the confidence of the voters. The measure of political freedom is an important point of demarcation for liberal democracy from illiberal regimes in which opposition electoral prospects are compromised, if not totally illusory. But the populist challenge to democracy is not simply a matter of illiberalism. Certainly there are xenophobic streaks to current populism, together with overt antagonisms on racial and religious grounds. And there is a manifest lack of commitment to civil liberties, starting with freedom of the press and continuing on to freedom of expression and worship. The interplay of these factors is the subject of extensive definitional inquiry, as well addressed by Jan-Werner Muller and taken up in many current debates. But populism also responds to the perceived failure of democratic regimes to protect the laboring classes from economic dislocation. The combination of the economic downturn after 2008 and the impact of globalized trade on wages in the advanced industrial countries tarnished the legitimacy of democratic regimes as an insider's game, a means of institutionalizing elite prerogatives. Rather than attempt another comprehensive account of populism, I want to shift the focus to the engagement between populism and democratic governance as an institutional account of how democracies function. Post 2008 anti-elitism as a social commitment translated to a robust anti-institutionalism in terms of state authority. The aim is not so much to provide definitions of either populism or democracy as to call attention to the features of democratic rule that have commanded attention for the era of democratic ascendancy over the past two centuries and that now seem subject to deep challenge. Without claiming apocalyptically that this era of democratic ascendency has come to a close, it is nonetheless worth examining how it operated to see the sources of contemporary disrepair. Here the suggestion is that there may be more inherent conflict with populism, turning not so much on the ultimate issue of an elected head of government but on the limits on the exercise of power.

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  What Does the Supreme Court Do?

  Samuel Issacharoff

  “To consider the Supreme Court of the United States strictly as a legal institution is to underestimate its significance in the American political system. For it is also a political institution, an institution, that is to say, for arriving at decisions on controversial questions of national policy.” Beginning with the failed confirmation proceedings for Robert Bork in 1986, the Supreme Court has served as a galvanizing issue in national American politics. For advocates, fundraisers, candidates, and much of the punditry, the United States is only one appointment away from Armageddon, whether defined by abortion, the death penalty, same sex rights, church/state relations, or just about any hot-button issue of our time. Nor is this particularly new. As far back as Tocqueville's wide-eyed travels in America, one of the defining features of the new world was the centrality of judicial oversight: “There is hardly any political question in the United States that sooner or later does not turn into a judicial question.” And so follows the commonplace observation that the Supreme Court is in tum just another political body, a claim often accepted by the general public, and rehearsed at times by America's most-cited judge, veteran Court journalists, and elected politicians of all stripes. To the more cynical commentators, the Court is composed of politicians in robes who, under the guise of deciding cases, “legislate from the bench” as unelected, life-tenured partisans. These criticisms proliferate whenever the Court acts in the most politically controversial cases, where the Justices are described as “eager” to dictate their own policy preferences as law.

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  The State of State Competition for Incorporations

  Marcel Kahan

  This chapter focuses on the competition by states for incorporations. More specifically, it examines three scholarly debates over state competition for incorporations: the “directional” debate, centered around the question of whether firms, if given a choice, will opt for corporate law rules that maximize shareholder value, corporate rules that maximize managerial benefits, something in between, or something else entirely; the “competition” debate, which is concerned with whether, how, and which states compete for incorporations; the “federalism” debate, which deals with the desirability of federal corporate law as an alternative to the present regime, where many corporate law rules are determined by the law of the firm’s state of incorporation. It also analyzes the empirical evidence in relation to all three debates.

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  Epilogue: When Citizenship Means Race

  Emma Kaufman

  This epilogue reflects on all of the chapters brought together by this volume by centring on the key finding that the chapters in the book demonstrate; that citizenship in today’s world means race. If the regulation of mobility enables racism, it also complicates the meaning of race and this final essay underscores these crucial aspects that both confound and shape the analysis of criminal justice, migration, and their intersections.

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  Choosing Ends and Choosing Means: Teleological Reasoning in Law

  Lewis A. Kornhauser

  Legal reasoning is often teleological though in a broader sense than used by John Rawls (1971) who distinguished between deontological reasoning and teleological reasoning. For him, teleological reasoning is goal-directed and hence consequentialist; it evaluates proposed actions, proposed policies, and proposed institutions exclusively on the basis of the achievement of the presupposed goals or, phrased differently, exclusively on the basis of the consequences that these actions, policies, or institutions would have. Deontological reasoning, by contrast, evaluates actions, policies, or institutions at least in part on the basis of some non-consequentialist features of the action, policy or institution: something other than outcomes matters. Most deontological accounts, however, do not ignore consequences entirely; in some circumstances, deontologists may thus have to engage in teleological reasoning. Teleological reasoning in law is, as for Rawls, goal-directed, but legal goals need not (always) be moral ones and the criterion of evaluation need not be consequentialist in the moral sense. Legislators everywhere have goals that they seek to promote through statutes; they must reason consequentially when they decide which legislation to enact. Administrative agencies, when rule-making, must adopt a similarly consequential stance. So, for example, the US Congress enacted the Clean Air Act to reduce the number of pollutants in the air. The Environmental Protection Agency promulgates regulations to further that goal. Similarly, Congress enacted Title VII, the Employment Discrimination Act, to promote a specific vision of labor market performance. The specific policies adopted are chosen at least in part on the basis of the consequences they have. Consequentialist reasoning is thus a central feature of legal reasoning. Its extent and role, however, may vary with the institutional setting. The extent to which adjudicators, moreover, must deploy consequential reasoning may vary with the structure of the legal system and the set of tasks allocated to the judiciary. Teleological reasoning in law thus poses two questions. What legal goals do legal actors pursue? What is the process of teleological reasoning? I address the second question in two stages as the structure of teleological reasoning, though apparently straightforward, contains some subtleties. The chapter thus begins by articulating the nature of teleological reasoning itself and its relation to rational choice in general and to rational choice theory in particular. I then turn to a set of questions that arise in a legal context. In the course of this latter discussion, I shall argue that much non-teleological reasoning in law elaborates the legal ends that teleological reasoners must pursue. The difficulties that confront legal actors engaged in teleological reasoning are quite numerous though not unique to the legal setting. So, for example, legal ends are often unclear and incompletely specified; thus, as earlier chapters suggest, much legal reasoning is directed at the specification and elaboration of legal goals. In addition, legal ends are collective, rather than individual ends. The collective nature of legal ends poses two difficult problems of institutional design. Though legal ends are collective, they are interpreted and implemented by individuals. Each of these individuals has her own ends; legal institutions must insure that each individual reasons consequentially on the basis of the legal ends rather than on the basis of the individual’s own ends. In addition, legal institutions exhibit an extensive division of labor. One institution sketches a goal; a second institution elaborates that goal; and a third agent implements it. Or, two distinct institutions grapple with different but related aspects of a policy problem. Good institutional design would maximize the extent to which these different institutions coordinate their actions. A third difficulty arises from the nature of the choices that legal decision-makers confront. Legal actors typically choose among policies or institutional frameworks. Teleological reasoning requires that these actors evaluate their options in light of the legal goals. These legal goals are often consequentialist in a more ethical sense; achieving the goals requires that complex social behaviors change. The desired social states, however, are “distant” from the choices faced in two respects. Consider a choice of a simple policy such as the choice of a speed limit on a limited access highway. This choice only partially determines the outcomes relevant to pol- icy assessment—travel times and accident rates, for instance; these policy-relevant outcomes depend on the decisions of drivers that the policy influences. Teleological reasoning thus requires the policymaker to predict how agents will respond to each policy she might choose. The choice among institutional arrangements most clearly illustrates the second form of “distance.” Institutions are twice removed from outcomes. When a policymaker designs an institution, she creates an institution that will itself make policy which will structure but not fully determine the decisions of many other agents. Evaluating an institution thus requires not only predicting how other agents will respond to the policies formulated by the institution but also predicting what policies the institution will promulgate. As I will argue below, this additional level of predictions poses challenging barriers to assessment. Finally, and parallel to the last point, the relation between the options available to the agent and the criterion she seeks to maximize (or satisfy) are complex. Her choices may only indirectly advance her goals; typically, consequences depend not only on the agent’s actions but on chance and on the actions of others or even on additional choices of the agent. These features require refinement or modification of the notion of maximization. The rest of the chapter proceeds as follows. Section 2 explicates the nature of teleological reasoning. The direction “attend to consequences” is deceptively simple; it conceals a number of complexities. One must determine (1) to what aspects of consequences one must attend, (2) the nature of the attention one must give to consequences, and (3) the relation between the agent’s choices and the consequences that arise. Some analysts suggest that an agent may, in answer to the second question, either maximize or satisfice. I define these terms and suggest that, generally, we may understand satisficing as constrained maximization. Section 3 discusses various forms of legal instrumentalism, the view that law is an instrument for promoting collective ends. Legal instrumentalism thus dictates teleological reasoning but different forms dictate that the reasoning occurs at different levels and by different individuals. Section 4 briefly discusses the choice of legal ends and the role of interpretation. Different interpretive theories prescribe distinct styles of reasoning when elaborating these ends. Purposive theories of interpretation dictate the use of teleological reasoning in the elaboration of ends. Section 5 briefly discusses the choice of legal means.

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  Economic Logic and Legal Logic

  Lewis A. Kornhauser

  In the mid-70s, Richard Posner claimed that common law legal rules both are and ought to be efficient (in a sense to be made clear below in Sect. 2). These claims posit a deep connection between economic logic and the substance of the law. The positive claim asserts that common law legal rules are in fact efficient; the normative claim asserts that common law adjudicatory institutions should adopt rules that are efficient. The claims do not, however, assert that, in the course of reasoning about the law, judges, lawyers, or other legal officials deploy or ought to deploy economic reasoning. Empirical confirmation that common law rules were in fact efficient would not entail that common judges deploy an economic logic. The efficiency of legal rules might result from processes other than the reasoning of judges. Similarly, a requirement that courts announce efficient rules does not entail that judges should adopt an economic logic. Given the structure of adjudication, judges might better achieve efficiency by aiming at something else. Conversely, a rejection of these claims does not imply that judges or other legal actors ought to renounce economic reasoning. One might reason economically but not pursue efficiency. The relation between economic logic and legal logic is thus an intricate one. This essay seeks to disentangle some of these intricacies. This task presents several difficulties. First, as stated above, economic logic might have at least two distinct senses. “Economic logic” might refer to the process of economic reasoning. In this sense, the claim of the efficiency of the common law reduces to a claim about the nature of legal reasoning. Alternatively, “economic logic” might refer to the way in which we understand the social processes that result in law. In this sense, Posner’s claim about the common law reduces to a claim about the causal mechanisms underlying the institutional structures of common law adjudication rather than a claim about the reasoning of judges or a claim about the causal mechanisms underlying the institutional structures of legislation and administrative law making. Second, and related to the first, Posner’s claim interpreted as the process of economic reasoning adopts a very restrictive sense of the nature of economic reasoning. After all, efficiency, in the economic sense, is a goal or a criterion against which to assess institutional performance rather than a methodology. Economists assess the performance of institutions against the standard of efficiency. Presumably, economic reasoning refers to the process or methods of assessment not the criterion against which the institutions are measured. Further, economic methodology understood as a method of assessment or analysis is not monolithic. The logic of welfare economics may differ from the method of microeconomics which in turn may differ from the methods of macro-economics or econometrics. Third, legal reasoning may vary across and within legal systems. The logic of a judicial decision rendered by the French Cour de Cassation may differ from the logic of a judicial decision rendered by the US Supreme Court. Even within a legal system, the nature of “legal reasoning” might depend on the substantive law. One might think, for example, that the decisions in competition law should deploy economic reasoning but not the decisions in domestic relations law. On this account, then, we might endorse Posner’s claims with respect to competition and contract law but not with respect to domestic relations law or criminal law. Fourth, and related to the third, the logic of justification, in both law and economics, differs from the logic of discovery. The argument in an opinion does not necessarily reflect the cognitive process that led the judge (or the court) to the announced disposition or legal rule. In what follows, I shall generally restrict attention to the logic of justification. Fifth, the logic of legal decision extends beyond the scope of Posner’s claim. Posner made a claim about the logic of judicial decision; but other actors also deploy legal reasoning and make legal decisions. Legislators, administrators, constitutional designers, and citizens, both in their role as private agents and their political role as voters make legal decisions. The logic of the law and its relation to economic logic may depend on the role the decision maker occupies or the nature of the institution in which she sits. One might argue that a legislator should deliberate about which legal rule to enact differently than she would deliberate if she were a judge (or an administrator) applying an extant legal rule. Specifically, one might contend that legislators, but not judges, should incorporate economic reasoning. Alternatively, one might, for example, contend that the institution of legislation is shaped by an economic logic. Public choice theorists and positive political theorists make claims of this type though, in their models, the economic logic consists of causal mechanisms that explain inefficient rather than efficient outcomes. Sixth, and perhaps most importantly, we must distinguish reasoning normatively about what our goals and values are from reasoning about the means for achieving those goals. Economic reasoning, though it addresses some normative questions, is primarily instrumental. It reasons about the means we should use to achieve given ends and it reasons about the causes of various social phenomena. Economics typically takes the aims of individual agents and, sometimes, collective entities, as given. Legal reasoning, by contrast, often involves the elaboration or interpolation of ends. Purposive interpretation of constitutions and statutes provide the clearest examples of this. This essay strives to disentangle these interconnections between economic logic and the logic of the law. At the outset, Sect. 2 offers a brief account of economic logic as economic reasoning; this account will be deployed in Sect. 4 through 7 which investigate the relation between legal and economic reasoning. Section 3 discusses economic logic understood as economic processes that may causally explain legal phenomena. Section 8 concludes.

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  On the History and Theory of Global Constitutionalism

  Mattias Kumm

  Concluding the first part, Mattias Kumm retraces the history of Global Constitutionalism, explaining that narratives are very much part and parcel of the history of western legal and political thought and have been connected to periods of western hegemony. With such a historical background, can Global Constitutionalism be sufficiently civilizationally and culturally inclusive? Can it be relevant when western hegemony seems to be receding and the balance of power shifting in favour of other regions? After clarifying concepts, the chapter provides some basic ideas toward an affirmative genealogy of Global Constitutionalism. Drawing on examples from Asian and European history, it shows first that universal categories and their meaning have often been shaped by contestations between different actors, not simply dictated by “the west”. It shows also that anti-constitutionalist claims, often made in the name of national tradition, culture, or sovereignty, have served as a cover for the continuation of practices of domination by national elites and as a shield for these from challenges by the oppressed. Third, the chapter shows that to the extent that international legal structures perpetuate forms of domination, constitutionalism has demonstrated the internal resources to criticize these and to guide efforts of progressive development and reform.

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  The Rule of Law, Legitimate Authority and Constitutionalism

  Mattias Kumm

  The Rule of Law is a political ideal whose widespread political endorsement across the globe is complemented by a great deal of disagreement about its content. That disagreement is in part a function of different legal traditions emphasising different elements as central to the ideal, reflecting particular institutional and ideological histories.1 Scholars also debate more generally whether the rule of law is a thin ideal, focused primarily on formal features of the law, perhaps complemented by certain minimal institutional and procedural requirements, or whether it is a thicker ideal, including further commitments to democracy and human rights. One of the reasons that these debates tend to be not only interminable but also intellectually unproductive is that it is not particularly clear what this is a debate about or what the relative criteria are for resolving it. The temptation is to understand it as a debate about mere semantics. There are different meanings one might give to the rule of law and there appears to be no right answer to the question of which is the correct one; all that matters is that one should be clear about what one is talking about. However, taking such an approach is misguided. There is something at stake in these debates, and the issues raised by the question are jurisprudentially interesting and politically important, or so I will argue. The following consists of three parts. In the first part (section II), I will suggest that the distinctive point of the political ideal of the rule of law is that it is focused on the conditions that must pertain for law to actually have the authority it claims to have. Debates about what elements are necessary for the ideal of the rule of law to be fulfilled should be understood as debates about the conditions that must be fulfilled for law to actually have the authority it claims to have. To start developing the contours of a plausible conception of the rule of law, I will then (in section III) distinguish the idea of the rule of law from three related ideas: the rule by law, the rule of men (or persons) and the rule of reason. Finally, in section IV I will provide further substance to the ideal of the rule of law by discussing its requirements as they are best understood in the modern constitutionalist tradition. We are the heirs of a revolutionary legal tradition that ties the idea of legitimate authority to constitutionalist ideas and institutions. The only plausible conception of the rule of law in this tradition is a moderately demanding one, requiring less than justice but more than merely respect for the formal virtues of legality: it requires the institutionalisation of democracy, including free and fair competitive elections and respect for human rights, as determined by impartial and independent judicial institutions.