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Brèves observations sur l’applicabilité de la CVIM dans l’arbitrage international

Franco Ferrari

To honour and pay tribute to Peter Mankowski and his remarkable academic legacy, this commemorative volume presents a vast collection of essays from home and abroad that match the breadth of the outstanding and prolific jurist's main scholarly interests, which ranged from international private law to insolvency and civil procedure law, arbitration and uniform law (particularly UN sales law) as well as comparative law and legal culture research.
Civil Liability for Motor Vehicle Crashes in the United States: From Conventional Vehicles to Autonomous Vehicles

Mark A. Geistfeld

As of June 1, 2020, thirty-five states and the District of Columbia have enacted statutes expressly addressing autonomous vehicles. These regulations largely address the preconditions for operating autonomous vehicles, including rules that govern operators and technical features of the automated driving systems. Only a few states have established independent frameworks for determining liability in the event of a crash. Federal legislation governing autonomous vehicles has yet to be enacted, but developments thus far strongly suggest that federal regulations will ultimately determine the important safety performance standards required of autonomous vehicles. Federal law is supreme over state law, and so federal regulations will preempt any conflicting state law requirements and immunize a compliant autonomous vehicle from tort liability. However, if a vehicle does not comply with an applicable federal safety standard and crashes as a result, the responsible party will be subject to state tort liability for the injuries. But until federal legislation or regulation has been enacted, state law will wholly govern the space. In the absence of state legislation, state tort law will determine liability for the crash of an autonomous vehicle. In the vast majority of states, manufacturers will be subject to strict products liability for any defects that cause their vehicles to crash.
Unifying Principles within Pluralist Tort Adjudication

Mark A. Geistfeld

A healthy political society values diverse viewpoints and their associated moral theories. Recognizing as much, Jane Stapleton and numerous other tort scholars have concluded that tort law is committed to pluralism as a substantive matter. Their reasoning seems incontrovertible: tort adjudication has always been conducted in terms of incompletely theorized mid-level moral principles such as reasonableness or fairness that can be justified by a plurality of values. Though otherwise valuable, substantive pluralism is problematic in the context of adjudication. If tort law must always be formulated to protect a plurality of competing moral values, it could not justify judicial decision-making in hard cases, nor could it meaningfully protect individual rights or otherwise provide individuals with requisite guidance on how they should behave when pluralist values conflict. Rather than entailing a commitment to pluralism as the substantive rationale for tort law, pluralist adjudication is more plausibly characterized as a dynamic process of constructive interpretation. Litigants have an institutional right to be treated equally under the law. The common law implements this requirement with its characteristic mode of judicial decision-making based on analogical reasoning—treating like cases alike. Analogical reasoning depends on unifying principles for categorizing individual cases, turning pluralist tort adjudication into a process that incrementally develops unifying categorical principles with the potential to converge into a single integrated rationale for tort law.
Israel Between Nationalism, Religion, and Liberalism

Moshe Halbertal

The most important and central issue with which the State of Israel has to contend is that of determining its character as a democratic Jewish state. Resolution of this issue will determine the state’s identity and, for good or ill, its future and its very legitimacy. At the heart of the tension lie two questions: What constitutional and legal elements may be derived from Israel’s “Jewish” component, and how do these elements accord, if at all, with the state’s liberal-democratic obligations? The adjective “Jewish” may contradict the adjective “democratic” in one of its two meanings—the religious and national meaning. In the religious sense of “Jewish” a situation could arise where the Jewish state might undermine Israeli citizens’ basic freedoms, including freedom of worship. A Jewish state of this kind, aided by coercive mechanisms available to the state for achieving religious goals, cannot be democratic in the full and commonly understood sense of the term, as by its very nature it would curtail its citizen’s freedom of religion and the religious pluralism of its constituent communities. In the national sense of “Jewish,” the state’s Jewish component could undermine the principle of equality between citizens, an essential part of the state’s liberal-democratic outlook. In this regard, the democratic component is harmed not by the religious features that may be subsumed within the concept of a “Jewish state,” but by the ultranationalist character that can be associated with this concept, an ultranationalism that would favor Israel’s Jewish citizens and discriminate against its other citizens, those belonging to minorities. This being the case, when we discuss the question of Israel’s identity as a democratic Jewish state, this is not a theoretical debate over a long-term vision, and the answers to that question dictate the precepts that define the underlying existential struggles within Israeli society. Israel faces momentous geopolitical challenges, but the big questions in this regard involve internal tensions concerning the very fact of Israel being defined as a democratic Jewish state—and those tensions could potentially shatter the country from within. Is it possible to have a Jewish state compatible with democratic principles where there is real substance to the state’s Jewish-identity component? And can that substance meet the test of liberal and democratic political thought? To clarify, let’s ask the following question: Could a Catalonian state, established on secession from Spain, be a democratic and liberal Catalonian state? Many Catalonians in Spain want a state of their own with its capital in Barcelona. In such a country, as in all European nation-states whose official language is the language of its constitutive nationality, such as Denmark, Finland, Norway, Germany, and the Czech Republic, Catalan would be the official language, the state’s symbols would be rooted in the culture of the Catalonian ethnocultural majority, the state calendar would be oriented toward Christianity and would mark Catalonian historical and cultural events, the national anthem would reflect the country’s Catalonian identity, and the state education system would impart the Catalonian national and cultural heritage to its young generation. The Catalonian state would allocate tax revenues at its discretion, based on such considerations as the welfare of its citizens, and its foreign policy would be determined by, among other things, the interests of the Catalonian ethnocultural majority. One may reasonably assume that Catalonia’s immigration policy, like the immigration policies of the Scandinavian and other European countries that limit immigration in order to safeguard their national identity, would ensure the maintenance of a Catalonian majority within the state’s borders. The situation described above is by no means unusual in modern Western history. The Norwegians, for instance, demanded all of the aforementioned conditions when they separated from Sweden under threat of war in 1907, based on the rationale that they see themselves as a distinct ethnocultural group. Like Norway, the envisioned Catalonia would not be neutral in any sense. But it is also true that there is no reason why it should be, given that those belonging to the Catalonian ethnocultural population have the right to self-determination, including a sovereign territory where the Catalonians are the majority, and where a common cultural space has been created in which the Catalonian cultural and historical identity is expressed. What we may conclude from the Catalonia test is that whether Catalonia or any other country is a liberal state does not depend on its being neutral in terms of its identity. The quality of the democratic system in such a nation-state may be assessed in terms of two other major criteria. One is whether the character of the state as a Catalonian nation-state undermines the political, economic, or cultural rights of the non-Catalonian minorities living in Catalonia; the other is whether Catalonia would accord the right to self-determination to other national groups such as the Basques—a right that many Catalonians are currently demanding for themselves. Upholding these two criteria is what distinguishes democratic nation-states from ultranationalist states, and both criteria are themselves the great test of the nation-state. Ultranationalist states are sovereign frameworks whose national identity translates into negation of the political, economic, and cultural rights of their resident minorities. Nor do ultranationalist states support the right to self-determination for other groups living alongside or within them. Ultranationalists do not regard such groups as actual peoples, and they relate to them as invented nationalities, which, as such, are not entitled to national self-determination. Israel’s legitimacy as a nation-state will be tested in terms of the same criteria by which other nation-states are assessed. If, in the name of the Jewish-state ideal, Israel’s Arab citizens are denied their rights, then Israel’s legitimacy as a Jewish nation-state will suffer a deadly blow. By unequally allocating resources for infrastructures and education, by distributing land in a discriminatory fashion, and by failing to recognize new localities founded by the state’s Arab minority, Israel risks transforming from a democratic nation-state into an ultranationalist nation-state. Furthermore, the principle of civil equality ought to ensure the right of all citizens to participate in government fully and on the basis of appropriate representation. Disqualifying Arab parties on principle from membership in the ruling coalition is another manifestation of an ultranationalism that cultivates the idea of “the enemy within,” making the minority an entity that has to be excluded and whose member citizens are of lesser status. Systemic inequalities of this kind constitute unjustifiable discrimination against the state’s Arab citizens. Not only that, but they also undermine the legitimacy of the state of the Jews. A Jewish nation-state can, and must, accord full equality to its Arab citizens in all areas where it has failed to do so thus far, and it must recognize those citizens as a national-cultural minority group whose Arabic language is the state’s second official language, whose calendar is recognized as an official calendar, and for which it operates a public education system that cultivates the Arab cultural traditions of its citizens. As with other nation-states, the second condition that Israel must meet in order to be considered a democratic nation-state is that of recognizing the rights of the Palestinian people to national self-determination in the West Bank and the Gaza Strip—the same right we demand for ourselves. The denial of this right, and the settlement policy that aims to create a reality in which the exercise of that right is impossible, undermines Israel’s legitimacy as a Jewish nation-state. It should be noted that fulfillment of the first condition is entirely in our hands, but that denial of the right of Arab citizens to governmental participation is, unfortunately, becoming the issue on which the political identity of Israel’s growing ultranationalist camp is based. Regarding the Palestinian right to self-determination, things do not depend solely on Israel; they also depend on the Palestinians being ready to live in peace and security alongside Israel. The liberal democratic obligation imposes yet another constraint on the “Jewish state” definition, one related not to the principle of equality but to that of liberty. Classical liberalism sees the state’s role not as dictating how communities or individuals should live their lives, but as safeguarding their right to maintain their way of life as they understand it, so long as they grant a similar right to the individuals and communities that live alongside them. Israel, as a democratic state, is obligated to safeguard its citizens’ freedom of religion and their freedom from religion. Beyond the basic principle that would invalidate religious legislation, based on liberal ideals of freedom of religion and freedom of conscience, opposition to the use of the state’s coercive power on matters pertaining to Jewish identity has yet another foundation Israel is supposed to be the state of the Jews and not just the Jewish state. When Israel, through coercive power, becomes the arbiter on issues of modern Jewish identity, it inevitably alienates many Jews from the state. Because Jews are so deeply divided on these questions, every decision the state makes will undermine Jews’ sense of belonging to Israel. Israel cannot, therefore, simultaneously be a “Jewish state” in the halachic sense, either fully or in part, and also the “state of the Jews.” Assuming that Israel’s commitment to liberal democracy imposes on the state’s Jewish identity the limitations dictated by the values of freedom and equality—what are the elements on which its identity as a Jewish state is based? Israel’s Jewish character is supposed to be embodied in four components. The realization of these components does not negate the possibility of Israel being a liberal-democratic state.
Class Actions and New Forms of Aggregate Litigation in the United States: A Response to Professor Arthur R. Miller

Helen Hershkoff

The Bocconi University’s Department of Legal Studies is proud to launch its Legal Studies Series with this debut volume, bringing together Arthur R. Miller and Helen Hershkoff, two esteemed U.S. professors of civil procedure with Bocconi professors Marta Cartabia and Cesare Cavallini for a public discussion of class actions and other new and emergent forms of aggregate litigation. Bocconi Rector Francesco Billari presided and emphasized the significance of the class action to the core mission of the Department of Legal Studies, namely, protection and expansion of justice. The far-ranging remarks focused on the origin and development of the class action, its utility in challenging racial and gendered inequalities, as well as market defects, and the potential—and limits—of aggregate litigation to resolve some of the most critical issues of our times, touching on technological change, environmental degradation, economic inequality, and democratic decline. Readers will find this volume to be not only informative, but also inspiring in its passion for justice.
Mimicry and Its Double in the Iraqi Civil War

Stephen Holmes

The US-led invasion of Iraq in 2003 sparked one of the most violent and complex civil wars in the early twenty-first century, one that provided ample opportunities and incentives for identity mimicry. This chapter uses the Iraqi civil war of 2006–2008 to understand the many forms that mimicry can take and the effects it may have in a modern conflict setting. It offers detailed descriptions of a wide range of defensive and aggressive mimicry tactics employed by all sides in the conflict as well as the counter-strategies they inspired. A striking feature of the Iraqi mimicry landscape was the phenomenon of policemen pretending to be members of sectarian death squads pretending to be policemen, a type of meta-mimicry intended to conceal the actual involvement of policemen in sectarian killings. Mimicry likely contributed to, and was subsequently somewhat reduced by, the sorting of Sunnis and Shiites into separate areas and to the retrenchment of the US presence into heavily fortified bases.
The International Law Minimum Standard of Treatment

Robert L. Howse

This entry looks into the international law minimum standard of treatment (MST). The entry details its emergence as customary international law, describes its contours and requirements, and application in investment law. In particular, it considers the relationship of the MST to the fair and equitable treatment (FET) standard in North American Free Trade Association (NAFTA) awards and the changes brought by the revisions of NAFTA under the United States Mexico Canada Agreement (USMCA). The entry finds that recently a treaty-based approach to defining international standards for treatment of investors and investments dominates. It concludes that the normative content in these recent treaty provisions overlaps considerably with that of contemporary regional and multilateral human rights instruments.
Majoritarianism and Minoritarianism in the Law of Democracy

Samuel Issacharoff and Richard H. Pildes

Democracies grapple with the tension between the principle of majority rule and ensuring respect for the interest of political minorities, however those might be defined in different societies and different circumstances. As an initial matter, constitutional designers confront this tension in the original architecture of a democratic system. But the balance struck between majorities and minorities is not exclusively settled through the original constitutional design. In the United States, at least, legal doctrine and statutory enactments have also been centrally engaged in ongoing fashion with this fundamental tension. As this essay chronicles, the law of democracy began with a focus on ensuring the majoritarian basis of American democracy. Over time, the focus then shifted to concern with fair representation of the interests of minorities within the majoritarian system. Now, we argue, the focus of reform efforts is shifting back to efforts to restore the majoritarian thrust of democracy. The law of democracy cycles, perhaps without final resolution, between supporting majoritarianism, concern for minority interests, and back again to shoring up the majoritarian foundations of democracy. In our era, it is the power of factional minorities who are able to leverage control of plurality winner processes that poses the greatest challenge for American democracy. The threatened tyranny of the minority of the majority now looms as a central challenge that democratic thought, policy, and doctrine must confront.
Addressing Trauma and Emotions in Human Rights: Reflections from Teaching and Practice

Gabrielle Jackson, Sarah Paoletti, and Margaret L. Satterthwaite

As academics and practitioners operating within the sphere of human rights and immigrant rights - work that requires listening to and engaging with experiences and narratives grounded in oppression, repression, violence, insecurity, discrimination - we are challenged to intentionally and effectively address the direct and vicarious trauma that surface in our work. We are also increasingly called upon by our students to recognize and respond to the full range of emotions that human rights work entails. This chapter incorporates the expertise of a licensed clinical social worker with experience working within the immigrant rights movement and human rights advocacy spaces and the insights of two clinical law professors. Together, we address strategies for acknowledging and giving space for the emotions and trauma we and our students grapple with in clinical human rights work. In doing so, we hope to enable the next generation of advocates to consciously and actively connect with the joy and rewards that can come from the work itself, from engagement with community - a community of clients, partners, and collaborators - and from our own lives.
Systemic Stewardship with Tradeoffs

Marcel Kahan and Edward B. Rock

In recent years, shareholder driven climate activism has focused attention on “universal owners and managers” – asset owners and managers with significant stakes in all or nearly all public companies. Advocates push these asset managers to prioritize enhancing overall portfolio value over maximizing individual company value, promoting "systemic stewardship" even when it involves sacrificing individual firm value for the benefit of the overall portfolio. This chapter assesses whether universal owners can and should pursue such a strategy. Our analysis is pessimistic for three main reasons. First, inducing individual portfolio firms to reduce their carbon output to address environmental concerns may trigger a competitive response that will reduce gains for other portfolio companies. Second, current corporate law has a "single firm focus" that conflicts with the potential "multi-firm focus" of large portfolio investors and exposes corporate fiduciaries to potential liability if they sacrifice firm value for the benefit of investors’ other holdings. Third, universal owners, managing diverse portfolios for various clients, face conflicts with fiduciary duties and their multi-client business model when implementing a tradeoff strategy. Given these challenges, systemic stewardship strategies that entail substantial tradeoffs are unlikely to have any significant impact on mitigating climate change.
„Making the World Safe for Democracy“: Einige Beobachtungen zum Verhältnis von Internationaler Rechtsordnung, Demokratie und globaler Sicherheit

Mattias Kumm

The article analyzes how in WWII the Roosevelt administration conceived of and structured the new world order they were building to „make the world safe for democracy“. It then goes on to analyze how in its current form that order fails in this task. The current international legal order fosters and enables great power competition by structurally failing to provide mechanisms for holding accountable great powers when they illegally use force. Such structural lack of accountability lies at the heart of dynamics of resentment driven establishment of counter-power by other states. This in turn leads to militarized great power competition with great risks of major wars. Reforms aimed at holding great powers legally accountable are not only compatible with democracy, they are the precondition for successfully institutionalizing a system of international law that may actually succeed in making the world safe for democracy.
The Rule of Law in the Liberal Script: Central Commitments, Variations, and Contestations

Mattias Kumm

The commitment to the rule of law as an ideal is central to the liberal script, yet its meaning remains contested. Those contestations relate both to the distinctive point of the ideal and the more concrete features it requires. The point of the ideal, this chapter argues, is not only to highlight the virtues of laws formalities, but to articulate the conditions that must be met in order for law to actually have the authority it claims to have. What those conditions are is also disputed. It is possible to distinguish between classical and neoliberal interpretations, republican interpretations and constitutionalist interpretations of the rule of law, with the last having the strongest arguments on its side.
The Class Action and Other Forms of Aggregate Litigation in the United States

Arthur R. Miller

The Bocconi University’s Department of Legal Studies is proud to launch its Legal Studies Series with this debut volume, bringing together Arthur R. Miller and Helen Hershkoff, two esteemed U.S. professors of civil procedure with Bocconi professors Marta Cartabia and Cesare Cavallini for a public discussion of class actions and other new and emergent forms of aggregate litigation. Bocconi Rector Francesco Billari presided and emphasized the significance of the class action to the core mission of the Department of Legal Studies, namely, protection and expansion of justice. The far-ranging remarks focused on the origin and development of the class action, its utility in challenging racial and gendered inequalities, as well as market defects, and the potential—and limits—of aggregate litigation to resolve some of the most critical issues of our times, touching on technological change, environmental degradation, economic inequality, and democratic decline. Readers will find this volume to be not only informative, but also inspiring in its passion for justice.
Equality and the Rule of Law

Sophia Moreau

The principle “treat like people alike” has often been regarded as part of the rule of law. But what exactly does it require, and of whom? How does it relate to other principles that are understood as part of the rule of law? And does it help us achieve “‘substantive equality,” a state of affairs in which every member of a society is treated with dignity and is able to participate in that society as the social equal of every other member? These are the questions addressed in this chapter. The author argues that this principle is best understood as applying to those who occupy certain institutional roles, but only when they have already treated some people justly in a certain way. It then requires them to treat others in a like way, absenting any morally justifying differences; and any justifying differences must be publicly presented and shown to be the kind of difference that those denied the treatment could not reasonably reject as relevant. The chapter explains how this principle is in certain respects more demanding than anti-discrimination laws, but also in important respects much less demanding, and so only takes us part of the way towards substantive equality. The chapter ends by exploring how adherence to this principle can help the state realize other elements of the rule of law.
Presidential Power and Federal Elections

Trevor W. Morrison

The president of the United States occupies what the Supreme Court has described as “a unique position in the constitutional scheme.” As “the chief constitutional officer of the Executive Branch,” he has duties “of unrivaled gravity and breadth,” “rang[ing] from faithfully executing the laws to commanding the Armed Forces.” Election administration, however, is not among them. Neither the Constitution nor any federal statute grants the president any direct role in the administration of federal elections. Yet as one scholar recently observed, in a variety of more indirect ways that are not always appreciated, “the President … routinely exercises control over elections.” This chapter discusses some illustrative dimensions of that control and considers important limitations on it as well. Part of the undertaking here will relate to the familiar problem of self-dealing in American election law. Because virtually all of the rules for how elections are conducted are made by elected officials who are often candidates in those very elections, there is a risk that incumbents will manipulate the rules for their own electoral advantage. This phenomenon is perhaps most acute when it comes to state legislators who draw the electoral maps governing their own races. By configuring their districts to include more voters likely to support them, incumbents can entrench themselves in a way that violates “the core principle of republican government, namely, that the voters should choose their representatives, not the other way around.” The president has no direct role in electoral boundary setting or election administration. Perhaps for that reason, until recently little sustained attention has been paid to whether and in what ways the self-dealing problem applies to the presidency. But especially in the aftermath of the 2020 presidential election and attempts by former president Donald Trump and his supporters to overturn its results, those questions call out for attention.
Digital Evidence Generated by Consumer Products: The Defense Perspective

Erin E. Murphy

Historically, criminal offenses were proved through witness testimony, physical evidence, confessions, and rudimentary forensic techniques such as fingerprinting. But with the dawn of the digital era, prosecutors have increasingly relied on evidence gleaned from the modern arsenal of consumer technologies, such as cell phones or automated systems. Although much has been written about prosecutors’ use of such evidence to prove a defendant’s guilt, far less attention has been given to the challenges faced by the defense in accessing, presenting, or attacking forms of proof derived from sophisticated consumer technologies. This chapter aims to fill that gap, first by presenting a taxonomy of digital proof and then by isolating the critical characteristics of such evidence. The chapter suggests that this taxonomy can support efforts to formalize and standardize a defendant’s ability to marshal defense evidence for exculpatory and adversarial purposes as readily as the government does to inculpate.
Dobbs, Democracy, and Distortion

Melissa Murray

On June 24, 2022, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey —once the twin pillars of its abortion jurisprudence—in Dobbs v. Jackson Women’s Health Organization. In so doing, Justice Samuel Alito’s majority opinion noted that the right to an abortion was unmoored from constitutional text and was not “rooted in the history or traditions of this country.” In such circumstances, the majority opinion insisted, democratic deliberation was the proper mechanism for resolving the competing interests at stake in the abortion debate. As such, the Dobbs majority insisted that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Pandemics, Privatization, and Public Education

Melissa Murray and Caitlin Millat

Much has been made of the COVID-19 pandemic's impact on women and families; in particular, on professional women who left the workplace in droves to assume caregiving burdens in the pandemic's wake. But the discussion of this “she-cession” often omitted one key player: the state. This chapter surfaces how the pandemic also laid bare the state's historically anemic support for caregiving, highlighting how the state's primary caregiving subsidy has come in a surprising form: the provision of public education. And when even this meager contribution dwindled during the pandemic, families were unsurprisingly tasked with privately taking up the slack.
Dobbs's Democratic Deficits

Melissa Murray and Katherine Shaw

The Dobbs decision ostensibly rests, in part, on a commitment to democracy—Justice Alito’s majority opinion made repeated reference to democratic deliberation as the proper mechanism for resolving the abortion debate. There are, however, reasons to doubt the Dobbs Court’s commitment to democracy. First, this chapter traces the history of the rhetoric of democracy in the Court’s abortion cases. Second, it explains that the pro-life movement’s shift toward state-by-state settlement of abortion occurred only after a failed attempt to pass a constitutional amendment that would have outlawed abortion nationwide. Finally, it turns to Dobbs itself to discuss the decision’s deep democratic myopia displayed in the opinion’s historical method and in its assessment of the current electoral landscape. The Court’s extremely limited view of American history, institutions, and democratic participation leads to the conclusion that Dobbs cannot genuinely be understood to rest on or further principles of democracy.
Environmental Claims in Bankruptcy: Dischargeability, Priority, and Other Policy Responses

Michael Ohlrogge

Understanding Environmental Claims in Dutch Insolvency Law How to deal with environmental claims in insolvency? Although the question as to the ranking of environmental claims has been one of the more controversial issues in Dutch insolvency law in recent years, there are many other and perhaps bigger questions: Could something like successor liability under Dutch law apply to environmental claims in case of pre-packs? Does it matter whether a claim is based on private law or public Law? Is it possible for companies to obtain discharge regarding environmental liabilities if they go through a restructuring proceeding?
Election Law and Democratic Governance

Richard H. Pildes

A major challenge facing democracies today is their perceived failure to deliver effectively on the issues their citizens care most urgently about. Yet democratic and legal theory have given too little attention to the value and importance of delivering effective government. Much of democratic theory focuses on values such as political equality, fair representation, deliberation, participation, and individual rights, among other values. But less weight is given to the capacity of government to deliver effectively on the issues members care most urgently about. Yet when democratic governments cannot deliver effectively on issues many of their members care most urgently about, that failure can lead, at a minimum, to distrust, alienation, withdrawal, anger, and resentment. Even worse, it can fuel desires for a strongman figure who promises to cut through the dysfunction and deliver when democratic governments have failed to do so. This chapter aims to bring greater attention to the importance of effective government in assessing current democratic arrangements and potential reforms. The chapter does so by identifying specific trade-offs between effective government and a varied range of democratic values, such as political accountability, equality, participation, transparency, and others.
Foreword

Richard H. Pildes

Back in 2004, I published a lengthy article, entitled The Constitutionalization of Democratic Politics, as the Harvard Law Review’s major reflection on the United States Supreme Court’s most recent Term. A major aim was to bring wider attention to a fundamental transformation in the nature of judicial review and the role of constitutional courts that had begun in the US in the 1960s, a role that by the 2000s was becoming more and more prominent – not just in the US, but in courts around the world. Before the 1960s, at least in the US, much of our Supreme Court’s role in the area of constitutionalism centred on defining the boundaries of political authority between the various institutions of government: state v. national government, state v. state, Congress v. the President. Beginning in the twentieth century, the Court also began to protect individual constitutional rights and, eventually, ensure equal protection of the laws. Similarly, with the rise of post-World War II constitutionalism, constitutional courts in many countries also took on the role of protecting fundamental rights and ensuring equality under the law. But before the 1960s, constitutional courts did not define as a major aspect of their role the oversight of the structures and processes of democratic politics itself. Indeed, to the contrary: in the US, the courts dismissed such efforts by holding that claims about ‘political rights’ were off-limits to the courts – not the appropriate subject of judicial review. To be sure, in countries in which post-World War II constitutions explicitly banned anti-democratic practices or political parties, such as in Germany, constitutional courts enforced these specific bans. But absent such specific textual guidance, courts did not generally understand it to be their role to determine the normatively appropriate principles and foundations for democratic politics.
Political Reforms to Combat Extremism

Richard H. Pildes
Why Proportional Representation Could Make Things Worse

Richard H. Pildes

We have deep reservations about any proposal to replace our current system of single-member districts (SMDs) and first-past-the-post (FPTP) elections by amending federal law to permit or require states to use multimember districts (MMDs) to elect members of Congress. For proponents, the point of doing so would be to achieve proportional representation (PR) in the US House of Representatives. In the fall of 2020, some 200 academics sent an open letter to Congress urging it to permit states to do so. The Fair Representation Act, introduced in the House in 2021, would, among other things, require states with two or more congressional districts to elect House members from MMDs using a form of PR based on ranked-choice voting (a system otherwise known as the single-transferrable vote [STV]). The purpose of such proposals is to enable the creation of a House comprised of five or six political parties. To the extent that Chapter 3 might be read as encouraging such changes, we would not want our silence to be taken as an endorsement. We will refer here to proposals for MMDs for Congress as proposals for PR.
Conclusion

Richard H. Pildes, Larry Diamond, and Edward B. Foley

Addressing the toxic tribalism and political extremism that has arisen in recent decades requires action along many fronts. One of these is the institutional framework within which democratic politics and elections take place. This volume has brought together a highly distinguished group of academics from several disciplines who have spent much of their careers studying how the design of democratic processes shapes politics and the political culture more generally. Our task force also includes lawyers and others with substantial experience with the political process. We do not believe there is a single institutional-design reform, or even a series of reforms, that could magically transform our political culture. But institutional reforms can matter at the margins in combatting political extremism, and those margins can make a significant difference in the kind of politics we experience and the larger political culture we inhabit. The institutional framework within which politics and elections take place creates incentive structures that shape which candidates decide to run, which are likely to win, and the relationship between political parties, candidates, officeholders, interest groups, and the general public. Moreover, because many citizens take political cues from those who hold public office, particularly the most visible public officials, the types of candidates who succeed also shape the larger political culture.