Blockchain Papers

Joseph Heath

The problem with police is not that they are fascist pigs but that our country is ruled by majoritarian pigs. Ta-Nehisi Coates To change the police without changing the police role in society is as futile as the labors of Sisyphus. John van Maanen This question is, I will argue, of considerable importance to political philosophy, because it exposes a tension in the liberal project as a whole. It has, unfortunately, been subject to relative neglect; there has until recently been very little philosophical or normative literature on policing, much less the policing of minorities.3 There are two reasons for this, both of them based ultimately on the perception that the problem is theoretically straightforward, and so does not raise any philosophically difficult questions.4 With respect to policing in general, many political philosophers appear to believe that the police are uninteresting, because they serve the purely instrumental role of enforcing statutory law. And with respect to minorities, widespread acceptance of the fascist pig theory leads to the perception that the problem is also normatively straightforward. If tensions between police and minorities are caused by the police being racist, then the solution is obviously for the police to become less racist. These two views, when combined, generate a highly simplistic account of the problem of policing minorities.5 It suggests that, since the police are there to enforce the law, all they need to do is enforce the law in a non-discriminatory way, treating all citizens equally, and the problem should go away. The argument, however, rests on a false premise, since the police do a great deal more than simply enforce the law, and it is primarily these other activities that give rise to problems. My preliminary contention in this article will be that both of the underlying theories about policing are false or misleading. Obviously, the police do enforce the law, but as several decades of work in the sociology of policing have shown, this is not all that they do, and, indeed, this does not even add up to a substantial fraction of what they do. And equally obviously, there are some police who are racist, both consciously and subconsciously, but this goes only part of the way to explaining the seriousness of the difficulties that practically every major police force experiences in its relations with particular a great deal of the for the in in on the subject in the that the on or has the of in many to the of the I will argue, it is to that policing is The is that who are to a subject to of and of that of the they I to this, Ta-Nehisi as the theory of to the that it a only on statutory law, is to this problem is the policing of minorities a in liberal To the in highly even when the is society is and the in to be are to society The article as I by two very normative of policing, about the of police The I to as the of policing, rests on the that police should be to law is to in and who have the to this, I will what I to as the of policing, the of statutory law as with of the The of the on this the of law to a of the of to The as a of policing is what the widespread for more as a to It is not difficult to however, that this a of normative difficulties in a The tension the on the part of the liberal to a on the of force only that a of The is that the police are subject to the for that the of law. this tension be by a and the activities of the police to law I will the by several reasons I this be I do not have any to to the underlying I do, however, that a of the of the problem is has been the subject of a great deal of in has of policing as not in the but many as This has many of is to the the police to as and in them with to normative The of the a of the of the problem and the to police are being to to in the in the they the to that they what the police do of the or it is the police that are they that statutory law a fraction of what the of the this what the police do, there any about the of is that they are of the who are to It is also liberal that this to force is or but also and law, and and in some law. The however, is to that because the of force by police is by law, it is only to enforce the law that its of is to that of this is simply not the as police the that is to them by statutory law to a of This and and, and enforcing the of This of policing is obviously in tension with the normative of police The is to theories of political that the of law as the only for the of force by of the This a of philosophical but a in theories of law, a between and law, of the as a of that the a of that them To that are is to that they are to in with the law, and the of in the of the of force by of the is only when it is to with a of the police are as being for these only be by the and is by the The of the police is to and who are of the law, them to the for the police the of the the the of law is then to the law the of and, in the who are in the of This way of about rise to what be as a theory of policing, on the that it the of force by police to of the This that the police should have the so as the is not in and is not of some other It suggests that, some law to the are to to the to any to or even to there is some between these and the of on this of as the to will to or be even to as they have not any and are any of a to a theory of policing has been by of the become when citizens of that country to a a police to to or to or in on the that activities are not in of any The is however, by the that in in this of police is widespread have to it by have the of all that is to the will of the other have the by a of law the a in some it is to or to a police to to or to and also be in that any to And the of to a police of be to of The is the of in the of is by the of practically all of in in citizens are subject to this of the of is in because the of these is not to the in but to police the to of the in to The for our is that the of these the theory of police it the that is some law, any of police be as of the law. And the to the of the underlying is not to who the police do in some of statutory law, with respect to they also the that is them by statutory law to do so with the and of is of the reasons that the to on police by that the of police there are of this that police but to that, it is to the of policing is not more philosophers of law and as they when to the of and it is difficult not to be by the of these in of that the of should be in of a of that of a The of is that they are all some more obviously than This is because the that are by have a by of the by this of both and for a become more with and of this, in the of and are for only the in more of have on this do not a but of a This them the of being purely the that they are by all other with law, is a of and law is not the that it is since all are but that it is the of the the of is and based on of The by this a of of the by and the a great deal of the for both in the as as respect for the of law. There is a of in some of society a of by widespread of and The of is to not only or of but also the and in this are to of the work that is in this The of and the of the The law, by is the of the And because it is so its This perception of the of the that are by the with respect to the law, the of the is a of to and and of is in the but it a only with a of the this has its purely then of by the The is to the fraction of who be without to the this the police be as of who are to when the of the are This them the of law but it also them in a of activities as or This is the by who the of policing, the and relations of between of and, in part for that a great deal of about the of police I to this as not only because it of but also because it is in tension with some of the of political the has been by its to force in the has been by a much more on the part of the to a on the of force in This by John who that the of the the of the that the to the of force in a And even this in the it not become in until the of the to that, the by the as a to the of in the the of as the The not to this of until the a that in with the of this of should with the rise of policing is since the only to it has the not to but to a is a has so to all This that when the of and appear to the of that the are of the will be to fraction of is not but in to a the police are subject to two there are and other who that the police enforce there are of who as a of to in of This is what for the that the the of statutory law, also to this police in the between the and other of in the to have two in they without or there the of and the of and there the the of the the of the and the of and to the of and of in part because the as the for to be as the only of This to a of the importance of statutory law, the of the to the of has been The police however, to its as police a of The that the police enforce not but also the and so it is to be about its in the simply to the of the citizens the of what be the that are to and, in when they the of what be without to they the the this of a between a and that is to of to in a that has up the to a of in the to a who is to to deal with a who is a the of police the police are to force in these they to statutory law in to that of the that the they are or the reasons for they are are to that is in any a policing up of that is of the reasons that police all the of are only police is in by of the is to the that in of force has of by who for the The to or the of has a on other much of simply when it in force to be as a there is a about policing in the that, because there is substantial between the by police and the be by the The problem is not that and have the to It is also that the of to force a of in that is difficult to The of and is that it go on some however, and be citizens police in to deal with that for police is for that the police are in all of the underlying of the of these of the the police in of with the that they the the of and the of the police to enforce statutory law, on the of the underlying This is a major in the work of who that of police enforce when the of it has This is not because police on of the to but also because the of are the The are the on the of and who simply by the and of the police are in to and as the police the to with the law way the part of the is by the that rests the of the the police to to the and of the by in that are to of or that the of in these force to the that are to This is the of policing because the is to a is that be by the is or it what of the of in the of of a or a is And these are but are by police to up some other to but not to the of the The that some are the law by in a practically about what the police should it a a a of it the in the it a of These are very when it to the of they or are they And are they they it for or in a way that for the or with other of the And is should the be and the to should some or all be And to the should they be or as it is is a to the and of the by the is simply a on the part of the other to them that and in the are not being is the role that of in police police are more to and to when the to a less as they are more to when they The of the a to to and to to and so is by of a or the police on to who the to the The is, of being for all between the of and and police also on who are as the of of the and and, until this it is not difficult to the of policing tension with the of political The of who is and who is not a of highly are based on the law in a liberal to on a of of society are not subject to any when it to the are all with these in is than work is than is than is than and in a of is than up in the up is than all and so a police is to a particular is a who to have in the the or a who to be with more it is these the of and are to the John in that who in a and does so in a way that on should be both and The part of this has a great deal more than the the law has become a great deal less about many of the that and even have And the police are to to enforce both and to enforce to a considerable to the for of This of that are not only in but particular about the of the that not be in a liberal The what be of as the of the police and the of tension with the of the liberal This of the of policing and the tensions that it in the of a liberal society obviously a of normative and I to however, in to this rise to when it to the policing of The of that is of is any that the in of or or are not as of but they as because they are with the many a of has or these by or that the of between and to and a liberal not with respect to and but with respect to and of highly policing, in the that the police to the that are by the a of that some very considerable that citizens the police to some then so because of the way that police been The of a of that is to with police and than a for police but police are citizens by by widespread police that they are being by the of the a of police that who in or of respect by the for the of the of of by police for and a police that or with for political or this of police up in a way that a to a with a by in a with of the they a is of this, there is considerable in the literature about it is to the of the it is not to what or is to and the of to what are police or the in the of and of are as to there is the that more and not do much to police relations with of the This has a great deal of on the or that to this in to is to without is to they with respect to minorities that are not a of the or of the this it is not difficult to of but in relations and the of minorities in a liberal society to the of policing even in the of This has been in the with a of that the to the I will the highly account of the that is the of policing it is to by a society between two of the the of the there is need to any of or between the or any or of both are by the of law, there is a police and are the both this it is not difficult to the our it does not the is on the police only that when of the to the that a between the of the and that of the police this there is a that to the of policing of the the of to the police do not of law, but the that police in that the the particular difficulties when these are by of a of the that they not what the not be to what is and what is not when a is of and not be with and they will be to who is and who is as a of they up treating both and of the of this with police and the to to relations with the that there is with its and so many by the of police on and even treating and citizens as they These widespread of police the that the being the police also have when with who is a and who is not in even need to a in to the of all police the it difficult to the because they are to highly in they of leads to a of in the of the police about to be to with in the and to the of or with force or in that do not the that the police are not of the of the but a force that of to its This leads to of the of the in leads to more as citizens become less to in with of leads the police to more up the more to and to police up more because of to force in to The of the police has a on both and The of the is not because of a to the to the of the to they than with respect to of that them to with a of the is of a that the normative of the police the that serve as a a great deal of is with and so a in the of the police to in the of the police it more difficult to who do by it for the police to the of has on the of does have a a a in police to in by And the of without the perception of a as a of police to as it have for policing is to what is to as the of the in with a with will have to a a the and so a with by many of these will be and so the will be more to the a the for policing, not but also by the of the to its The on the that are less are to or they are to when they in be in this because of the way that it citizens in the for policing police more to to the they This the that majoritarian policing, than the to and the of have the of the of the on the This for the of being both and the police are a the to have much of a on This of rise to the perception the that the of the police is to its not to or It in the that police the the that the of they and so this the of policing to My in this account is to a even highly there are that the of it should be are particular to the and so should be not to this widespread in the both the of and leads police to much more of police on in of the and the of police it very difficult to and of these be simply by other There however, other that be in and are to that they The is obviously of the or minorities, in as as a of for This to the of of the police in the of in to have to It also to in as of to the as a and be to between its and part to and are also than the a that is with more and is of a of between all of these and it is as a the that the to in of with generate for police both by the of the and by to This also for police and the that police will in a more This to some on minorities in many have become subject to The is, in a since are to a that, and to My has been to that even some of these a of liberal a tension between the that police are subject to for law and they for is not to that have with the policing of minorities, that these are of a many policing is and so there is less of a between the way that minorities and are If the problem of relations in liberal this caused ultimately by the that the police role activities that the of law is what the need for in the of many will that the solution is for the police to in these a it that the police are and in that statutory If it that these activities are also for the of policing that in relations with minorities, then that to the for It is difficult not to be by the of this or to the about being in a way that is less than to and And who have some with police the that police should to law is as the the problem a between a and normative and a highly The is that in the has in a of policing that the The question then this a of or it a on of The in other is should be to based on our to a normative or there is in these should be to to the police role is by to as a of The to the is that it the to this in it to a of is but when add up to a be of the of policing If the to have the law as without the of the then the law have to be a great deal more and need to be up to have the of of need to be and are not need to be it is that be that the police that are not to law of these are about the of be to If they then the to of the it does not any of the If they are not so then the does a but a highly of much be without all of this, that the to of the of and to law This is to have the It is a in the literature that the police do in a is to to This is by to a If this they on to the The of policing police in way, both by and by them to the of force when it is not some law has been police have to give to or to to And these serve role in is a is of or It is difficult to this not in to there is between and of as as between the and the the and of the police role to in and more more the more police are and without being to the more it is that they will or the activities that police it is to in that the police little to this to what they to as police is, law in these activities primarily because of the and If the police to these it much more difficult to citizens in what to as that is, of policing be to give rise not only to of but also for in many the police and are or do a in and even of the the of a in the of to the of the by the on the of force by the is not that be for it be If the of policing to law a of the be that other in to The problem with the to policing is that it police to in the of of police that policing, in for citizens to then and to the And any to this, to with citizens to the of a the police with they should to the This of a for the of that between that is or the police until a has been There is some of the police role to law as by the also the of in There is that the police to be to that they be to this, without being of that And it is not that the of law is to police of the law in that is as in some in with respect to law, as a way of but all suggests that this of police this it is to in that perception of is primarily to of with police they they they The of the law be by the perception of in its My is that much of the for is a in the police of the the to a of all policing is the of a more to the of than simply the And is purely practically every this is with the it is difficult to the any to that with by the of the by the theory to on and to in both on the part of police and in society These that a to policing does not much of a for the that in with To the that the is it is because of of the police philosophers who the importance of for policing, the has been to a to both and have that police should be subject to the of in the way that they as I have to in the is not that be without to a particular of and in in a way as to the of so that citizens are not to in of This a on of the liberal is to To police the by of and other of when what of a they are liberal appear to based on of police should in all with the it is difficult to they a of liberal without it is to the law to a police in to law, and there be that will this in a society that they will policing to the of the as it more the of by police on the of who the of This suggests that the by and between and is in that the problem of policing be by the of liberal the of with respect to of then it have been there are police and that have some of in and so of them the underlying tension in liberal and so they be as to the are by in a way that they be in every The and to the problem of of the the is to a police force for with the that is, a for have been to police to or police on the by these police should not be they problem when it to perception of the of the This is on in because of the of in that they and of these the only with that have a of with of in its a in by the policing is not and so police have to the of and of The when it to the of majoritarian policing, is to a much more in to the need for policing, and in to the on police to in It is for that with a do not policing, in part because they and so are to without or major to for for also of the than the It should be however, that the of is in that of both the of to in and problem

Zhenjie Yang, Linda Chelan Li

Decentralized court finance and personnel management practices have been criticized for breeding extra-judicial interventions and corruption in China. Determined to advance law-based governance and to constrain recalcitrant local leaders, the Chinese leadership under Xi Jinping in 2014 rolled out reforms to centralize local court finance to the provincial level with the aim to sever local courts from local influence. Despite high expectations, implementation is at best partial. Close to half of all provinces have not accomplished the required changes, and more than half of all court expenditure continues, to date, to remain reliant upon local governments. The direct reason is that provincial governments lack sufficient and sustainable fiscal capacity to finance the operation of local courts without central assistance. Different interests between major stakeholders, namely the courts and the fiscal bureaus, also add to coordination problems and difficulties in reform implementation, in particular the tension between fiscal adequacy pursued by the judiciary and fiscal management efficiency stressed by finance bureaus.

Zhenhuan Lei, Yishuang Li

No abstract is available for this record.

Dor Bitan, Ran Canetti, Shafi Goldwasser, Rebecca Wexler

The use of hidden investigative software to collect evidence of crimes presents courts with a recurring dilemma: On the one hand, there is often clear public interest in keeping the software hidden to preserve its effectiveness in fighting crimes. On the other hand, criminal defendants have rights to inspect and challenge the full evidence against them, including law enforcement's investigative methods. In fact, in the U.S. adversarial legal system, the defendant's rights to scrutinize the government's tools are crucial to the truth-seeking process and to keeping law enforcement conduct lawful and constitutional. Presently, courts balance these conflicting interests on a case-by-case basis through evidentiary privilege law, often voicing their frustration with the challenging dilemma they face. We demonstrate how judicious use of a sophisticated cryptographic tool called Zero Knowledge Proofs (ZKPs) could help to mitigate this dilemma: Based on actual court cases where evidence was collected using a modified version of a peer-to-peer software, we demonstrate how law enforcement could, in these cases, augment their investigative software with a ZKP-based mechanism that would allow them to later provide full responses to challenges made by a defense expert -- and allow a defense expert to independently verify law enforcement claims -- while keeping the software hidden. We demonstrate the technical feasibility of our mechanism via a proof-of-concept implementation. We also propose legal analysis that justifies its use, discusses its merits, and considers the legal implications that the very existence of such a mechanism might have, even in cases where it has not been used. Our proof-of-concept may also extend to other verification dilemmas in the legal landscape.

Neus Torbisco‐Casals

The emergence of an international judicial system is often perceived as a cornerstone in the process of building a ‘global’ system of governance.1 Since the end of the Cold War, we have witnessed the rapid proliferation of international courts and tribunals (hereinafter ICs) and the progressive expansion of their scope of jurisdiction to areas as diverse as trade, the law of the sea, human rights, and international crimes (Katzenstein, 2014; Kingsbury, 2012). These ‘new-style’ ICs and quasi-judicial bodies (Alter, 2014, p. 68) allow for wider access from potential litigants, and they are more autonomous than their predecessors, operating often on a transnational rather than inter-state model (Keohane et al., 2000). In doing so, they transcend their function of mere dispute settlement mechanisms to become law making actors in their own right, with significant discretion to interpret international law (Besson, 2014, pp. 419–428). This development has been hailed as a major shift from an international system based on politics and power toward one governed by shared rules and principles under a genuine ‘global rule of law’. Cosmopolitan-minded scholars and advocates, who dispute the place that territorial borders and national identities should have in delimiting our fundamental rights and allocating public goods, rejoice about the gradual collapse of the divides between the domestic and the international. Yet with the growing independence and expansion of the mandate of international judicial systems, these mechanisms have attracted attention as to their legitimacy and accountability in relation to different stakeholders. The international judiciary is no longer seen as “the least dangerous branch.”2 For some critics, accepting the jurisdiction of ICs entails ceding national sovereignty to ‘foreign’ judicial powers, which have an increasing capacity to create new law. For others, the international judiciary in the absence of a global democratic constituency represents another imposition of Western values that remain alien to other cultures. Moreover, in the current political climate, institutions of global governance, including ICs, are confronted by growing reactionary populist movements that pit democracy against internationalism. To these movements, the turn toward transnational forms of governance, legality and adjudication is perceived as a democratic dysfunction and belittled as harmful to the preservation of the identity and autonomy of a (monolithic and nationalistic) view of the polity. Regional and international human rights bodies, and the International Criminal Court (ICC), are particular targets, insofar as they typically address how states should treat individuals on their own territory. They also tend to protect marginalized minorities against the majority's conception of the identity and values of the polity, and seek to impose rule of law constraints on the executive and legislative branches that often claim democratic support. Yet other ICs—especially in the area of trade—have also become the target of populist and sovereigntist leaders as they are seen to impose unjustified constraints on desired domestic policies. In light of such diverging approaches, it becomes ever more crucial to inquire into the foundations of international courts' legitimacy. To this end, a number of scholars have called for a ‘democratic’ re-conceptualization of the international judiciary (Bogdandy & Venzke, 2014; Grossman, 2013). This has generated attention to a broad range of elements, from appointment processes to procedural rules in order to guarantee judicial independence but also accountability to different stakeholders (Grossman, 2013; Pérez, 2017), typically with a focus on specific types of courts (Føllesdal et al., 2014; Hayashi & Bailliet, 2017; Hennette-Vauchez, 2015). Yet, as I will argue, by reducing the so-called ‘legitimacy deficit’ to a problem of institutional factors and representation of ‘national’ constituencies, we might be overlooking a deeper dimension of the ‘diversity challenge’—one that emerges out of the need for and The this by an of the legitimacy of ICs that to some of the in the populist of ICs, in particular the between democracy and internationalism. The from human rights courts and international as these are the of as I seek to is also to other ICs with domestic political is the for dispute settlement mechanisms in international and law and to a also international such as the International Court of I by in more the of democracy and for the legitimacy of ICs and with the of which has been a an global and in a of populist movements ICs in more democratic shared and a model of domestic and international Yet, as in such for a turn toward a ‘democratic’ model of international adjudication have an of the democratic accountability of domestic courts in the for the they This is it to the of the judiciary with to and the representation of has been in some and the of such of a particular domestic to some of the toward the the advocates, and in particular a of the of might and that might a of in international as a for the legitimacy of courts and increasing the of judicial by a more of The emergence of political the and forms of governance, as as the and power of In the of a gradual of the ICs transcend their function as a mere dispute settlement to become more than in other we these of the view of sovereignty in the of the international of human domestic a in the scope of rights to their systems, legislative in this area are often to and the one the to and the to which they are is the for be in but the be to individuals who to to the for this least of as a fundamental of the other the capacity of to their the international has For to a in the of a but to against the and domestic courts their to the Court of This might the in order to the of fundamental rights in the of such as the to as against of in their ICs interpret an of international in an a mere function of dispute and public in a that is to a representation a significant of discretion in the and international law in order to They in and they rights in a international the international and the domestic the of The of this are international human rights courts in rights bodies on on tribunals impose on to with of legitimacy have in the of these To the that ICs are the of international they to the that domestic courts for legitimacy to the of and typically between such a conception and a the factors that the of actors the and of & be as they are the of a process of and with political this on of these of legitimacy are For the for about the legitimacy of ICs their as of in the of and the other an legitimacy is this and and in and domestic For the legitimacy of the states and and and individuals have to this as against their This a significant for the and and has to their from in a is more the international than as ICs to in a in order to actors to with their states their and of public as domestic might be the system as with other international ICs they are as by democratic & p. insofar as the international judiciary it becomes more from a democratic that who are by such system that they are their own p. In the the democratic legitimacy of ICs is based on to to their Moreover, international adjudication is of as to to on this are to the in which to judicial is and to of procedural the the it in a and the in & such an democratic for the of public by the international judiciary is in with the new of ICs as bodies with significant In the for the legitimacy of domestic be to the international as the a and which a democratic for claim to These about legitimacy have become more in the current of populist that to democratic to and international The against human rights and global of this also entails a against international courts and quasi-judicial For in and a number of public have to from the and to the of sovereignty to a The the on and other the of against and has also been as to the of political as a against the sovereignty of a democratic In order to these legitimacy have to ICs in democratic the International scholars the that national and transnational as the should as a for of ICs (Bogdandy & Venzke, 2014; Grossman, 2013). This the democratic which tend to become and the institutional of ICs, and their need for processes of political The of jurisdiction by ICs is in the of a more of public of legitimacy to be in this toward is an increasing focus on of accountability and on the need to the independence of ICs and other bodies with a their power and it with the of The of a is typically to the of the in of international law and to for in a conception of In for has to the of the the of domestic institutions that be the of the of seek to by international to domestic and the legitimacy of ICs & 2014; to are in a number of For in the mandate of the entails that and to and should be by the as a a is to and In the human rights the has on the of more in the of the from states & in the of the Court of have with in to that domestic are to human rights and the rule of law p. for have been with to & In from this the legitimacy of ICs insofar as they are perceived as with and domestic of democratic is perceived as a they rather than domestic a the autonomy of the international system is in of an model of public that claim to legitimacy in this is in their but ICs with states in a global rule of law. that this conception on the relation of ICs with domestic and on the of et al., et al., 2014; Hayashi & Bailliet, Yet these and other to institutional mechanisms to ICs to domestic processes overlooking a deeper legitimacy to the of and of have attention in the of international they are crucial courts are to as of marginalized of judicial and a for the of by courts The conception of public accountability is based on the of but the of minorities and identity and domestic The that to adjudication legitimacy judicial processes are as a to protect the rights of is a that such and to divides and of the In the current of growing populist democratic and against rights, this is For one by democracy against the values in human rights that are in as constraints on This conception of rights as on sovereignty is in the of a of “the leaders typically a politics of to and against that are as to and In this conception of democracy as the against rights often place often by an of public including are into executive are is by on of and is and and on The of a model of in diverse states a of this about to to the need of new of and rights as rights a number of some of in order to and other rights of and national Yet and the of the between the and in a of and to global have as a to such and human rights of and to other 2014; & In of such as the current global to that on international human rights The claim is that are between human rights and such as the of from In the of this the to a view of the based values to that are perceived as of of political to impose to the of human rights, the of minorities in the of national minorities their and rights by an political climate, courts and to protect and forms of transnational with political against states that to protect human for the international judicial by to protect their from International human rights law is in by the and other ICs domestic are for to and of rights and that to the are out in these international judicial International has become an for to The for has a of the of for the and identity of these as of their to This is for that seek for human rights by but to public legislative and of of and rights are often of global human rights that against of the human rights of in minorities et al., to with minorities also in other the with to the crimes in in and of are for in on a international are an in with of particular to Yet, in this to domestic public that remain an between rights the and the identity of the which are as these to the is the of international adjudication in delimiting the between and forms of to remain in the model which in the of the international and in the public accountability of the international is a need of the legitimacy of international adjudication in a that of and ICs are as institutions of global governance, of legitimacy should a the the need for a more the model of democracy to the of domestic and to for the power of ICs as a of to the foundations of the international rule of law. 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Tom Gerald Daly

Gardbaum’s comparative political process theory (CPPT) arrives at an odd juncture in world history. Positing a role for courts to remedy representative democracy’s defects, especially given the ascendance of authoritarian populism, it was completed just before the global COVID-19 pandemic hit and places courts center-stage just when they have suddenly receded into the background. Exceptions include the US Supreme Court’s refusal to extend the deadline for absentee ballots in the Wisconsin presidential primary on April 7, 2020—decried by Justice Bader Ginsburg as generating “massive disenfranchisement.”1 Even before the pandemic, it appeared increasingly untenable to cleave to a view of courts as strong bulwarks for threatened democratic systems. A growing literature frames the US Supreme Court as degrading democracy due to the substance of its decisions, not the mere fact that it enjoys constitutional supremacy.2 The Constitutional Tribunal has been captured and pressed into service as a “government enabler” in Poland.3 The Israeli government is said to have retained the “judicial revolution” empowering the courts while rolling back its liberal dimensions.4 The Indian Supreme Court has appeared more interested in self-preservation than guarding the democratic system threatened by Modi, and has undermined the functioning of parliament.5 It is a profoundly different global reality compared to just a decade ago, when the international juggernaut of juristocracy still seemed unstoppable. We are potentially entering the era of “post-juristocracy,” where courts’ decades-long accretion of governance power—and the accompanying obsession with, and faith in, courts—is waning. While courts remain a core preoccupation, many in the global comparative constitutional law community seemed to be moving on to new obsessions, such as political parties, citizens’ assemblies, and other deliberative innovations.6 Yet, Gardbaum’s theory remains acutely relevant. The pandemic has laid barer than ever deficiencies in governance worldwide and re-emphasized the centrality of effective political processes to what Schmitter calls “real-existing democracy.”7 As recent high-profile cases attest, courts play an irreplaceable role in supporting the role of other systemic actors—not least the UK Supreme Court’s stunning riposte to the government’s prorogation of Parliament.8 Gardbaum’s theory presents a laudable project to go beyond zero-sum, excessively abstracted debates on judicial review’s democratic legitimacy, and a patchwork of single-country analyses, by crafting a framework for understanding how courts worldwide can offer a targeted democracy-supporting role. This article responds to Gardbaum’s theory on the theoretical and empirical planes. Section 2 addresses how CPPT relates to existing theories not addressed in his account. Section 3 addresses contextual factors that complicate, frustrate, and limit the application of his theory. The main argument is that CPPT can be more fully integrated with existing frameworks, and that the assumed universality of its application should be reconsidered against today’s global reality. In constructing his theory Gardbaum draws, beyond Ely, on the work of theorists such as Sam Issacharoff, but does not engage with a range of relevant frameworks.9 This section places his account in a fuller context, drawing out its connections and resonances with existing theories. First, a brief summary. Gardbaum’s theory builds on Ely’s “participation-oriented, representation-reinforcing” approach to judicial review across three dimensions: (i) expanding Ely’s binary focus on incumbents’ suppression of democratic participation and systematic disempowerment of minorities to encompass additional malfunctions, including legislative failure to hold government accountable, executive capture of independent institutions, special interests’ capture of the political process, and outright dysfunction of one or multiple institutions; (ii) shifting the focus from outputs (especially legislation) to process; and (iii) seeking a more universal theory than Ely’s “self-consciously parochial” approach. For Gardbaum, like Ely, policing against erosion and distortion of the political process cannot be left to the elected branches alone, as vividly underscored in today’s era of “abusive constitutionalism” where the primary targets of errant executives are the structures of democratic government, rather than rights, and where policing legislation alone will leave much dysfunction and manipulation unremedied. CPPT seeks to provide a framework for grouping together issues that may otherwise not be analyzed as variants of the same problem, and a standard for when courts should intervene. For Gardbaum, courts should assist the democratic system to function “as it is supposed to,” support the functioning of other systemic actors and guard institutional pluralism, block attempts to stymie deliberation, contain and prevent manipulation (even if it cannot be fully remedied), and do so through a mix of mostly weak-form review, but also strong-form review when necessary: policing electoral processes and rules; lawmaking processes; mechanisms for executive accountability between elections; and rules and procedures of the executive and legislative branches, and the administrative state more widely. This departs from Gardbaum’s long-held position focused exclusively on weak-form review as the best universal option, allowing courts to adjudicate boldly and guard the coherence of the constitution without antagonizing the other branches, raising the risk of political attacks, and undermining the principle of judicial independence.10 The return to Ely’s theory, as well as moving past the longstanding US debate between interpretivists and non-interpretivists, serves to reanimate the well-worn debate hammered out in the context of long-established Western democracies, where the Waldronian and Dworkinian camps for and against strong judicial review (i.e. the ability to strike down legislation, and judicial supremacy more broadly) had argued to a stalemate by the early 2000s. Gardbaum’s theory also resonates with a parallel debate encompassing a broader suite of theories on judicial roles in young and Global South democracies which, as explained in Section 2, has increasing relevance to all democracies in the era of global “democratic decay.” This debate can be characterized as containing five principal, partially overlapping, arguments: Gardbaum’s “weak review” argument, discussed above, and what may be dubbed the “mirror,” “Global South,” “surrogate,” and “scaffolding” arguments.11 The “mirror” argument holds that constitutional courts in young democracies should approximate the role carried out by courts in mature democracies; playing an active part in democratic governance, but acting strategically to avoid addressing matters that will trench unduly upon other government branches’ sphere of action. For Sadurski and Ginsburg, discussing younger democracies in Europe and Asia, the main contribution courts can make is protecting rights,12 and constraining state authority.13 Ginsburg suggests caution is warranted regarding intervention “on core issues of the political process,” albeit in the context of extreme cases in Mongolia, South Korea, and Thailand concerning impeachment, the formation of government, and appointment of the prime minister.14 Daniel Bonilla Maldonado has argued that the jurisprudence of non-Western constitutional courts, including the Colombian and Indian apex courts’ assumption of more expansive governance functions across both substance and process, should be viewed as a legitimate “constitutionalism of the Global South” constructed in response to starkly different socio-political contexts and governance challenges—including political violence, high rates of poverty and inequality, cultural and religious diversity, and “consolidation of the rule of law”—which should not be discounted simply because it departs from the approaches taken by leading Western apex courts.15 The “surrogate” argument pushed this logic to the extreme, contending that courts could drive democratic development where the existing political party and wider political systems are unequal to the task. Scheppele described the stunningly assertive role of the Hungarian Constitutional Court in the 1990s as “democracy by judiciary.”16 The Court not only intervened strongly regarding outputs—striking down a third of all laws passed by parliament in its first six years, for instance—but also weighed heavily in the legislative process, especially by issuing advisory opinions during parliamentary deliberations and ordering the legislature to enact laws mandated by the Constitution.17 Approaching the “separation of powers as a contact sport,” the Court assumed an expansively interventionist role.18 The “scaffolding” argument adopts a much more targeted approach, focused on actively mitigating the worst deficiencies of young democracies and preventing elected organs from overwhelming the basic structure of democratic governance. For Issacharoff, in states such as South Africa, where the democratic transition leads to single-party dominance, the courts’ central role—which constitutes legitimate intervention in the political process—is protecting the “vitality of democratic competition for electoral office and the ability of the political process to dislodge incumbents”; to prevent the transition souring into a new autocracy through hobbling of the opposition, partisan capture of all state power, and control of elections and the media.19 Courts thereby shore up the “weakness of not only political institutions, but the ancillary civil-society participants in democratic life”—especially political parties.20 In the Latin American context, Gargarella’s concept of “democratic justice” has similarly argued for targeted judicial assertiveness, especially to counter excessive concentration of power through hyperpresidentialism.21 My own position aligns with the scaffolding argument, on the basis that it respects the principle of popular government, avoids the trap of overloading courts, provides a sense of core mission, and expects courage when fundamental democratic functioning is at stake—not merely staying within the political branches’ “tolerance levels.”22 More recently, David Prendergast has revisited Ely’s theory in arguing for a “suitably restrained” judicial approach to protecting any kind of democracy from populism, through specific, modulated, and often prophylactic intervention in political processes “to correct them when they have gone awry and to help prevent them going awry in the first place,” by policing the fairness of processes and procedures, and upholding institutional pluralism.23 Placed within this broader theoretical landscape, Gardbaum’s theory clearly pursues a scaffolding argument in its delineation of a sphere of robust judicial intervention without according courts uncabined discretion. However, he augments existing frameworks by providing a more granular theory of how targeted intervention may play out in practice, and the issues it would address. Gardbaum’s self-consciously global theory provides an illuminating analytical lens for a variety of states. It adds to our understanding of the UK Supreme Court’s reasoning in its prorogation judgment that judicial intervention “will not offend against . . . [but] be giving effect to the separation of powers.”24 It provides a clear framework for judicial protection of representative democracy in states still considered to enjoy good governance and independent courts—the Canadas, Germanies, and South Koreas of the world—as well as states in which, despite significant challenges, the democratic system has not degraded beyond targeted judicial intervention, such as South Africa. It may be instructive for states undergoing democratic transition, such as the Gambia, where both draft constitutions envisage a rather powerful supreme court.25 However, in the global climate of democratic decay, various factors complicate and limit CPPT’s universal application. Recall here that Waldron’s core argument against strong judicial review made a distinction between “well-functioning democracies” and other states. For Waldron, in the former—with adequately functioning representative and judicial organs, most officials and citizens committed to the idea of individual and minority rights, and “persisting, substantial and good faith disagreement” concerning the implications and meaning of such rights commitments—strong judicial review cannot be justified.26 In the latter, by implication, more extensive judicial action might be justified, suggesting the democratic legitimacy of judicial review, and its ambit, is context-sensitive. Of course, Waldron never specified what states counted as well functioning, but we could surmise his inner circle as comprising Global North democracies in North America and northern Europe, and perhaps states such as Japan and Costa Rica. The “parallel debate” on young and Global South democracies discussed in Section 2, while interesting from a comparative angle, was intuited to be of limited relevance to well-functioning democracies. The global phenomenon of democratic decay has significantly softened this dividing line. With many long-established democracies experiencing authoritarian populist leadership, dysfunctional governance, weakened parliaments, hyper-partisanship, sweeping negative transformation of the political-party system, and society-wide polarization, the parallel debate has become more broadly relevant.27 The pandemic has revealed this political dysfunction in its most alarming detail: Scheppele, for instance, has described the Trump administration as acting like the government of an “(almost) failed state.”28 However, this is not an argument for untrammeled expansion of judicial power. Indeed, even with the most independent, learned, perceptive, and strategically nimble court, the assumption of an overweening tutelary role could never be justified in democratic terms: indeed, arguments casting Brazil’s Supreme Court as a “moderating power” beyond the reach of any democratic control, as a response to the perceived failures of democratic politics, have been sharply criticized.29 Yet, even within the narrower confines of CPPT, it is contested that the current US Supreme Court could meet its apparent starting preconditions of independence, impartiality, and institutional legitimacy. Responding to the Kavanaugh nomination debacle, Epstein and Posner have offered that the Court, “[f]or the first time in living memory, . . . will be seen by the public as a party-dominated institution, one whose votes on controversial issues are essentially determined by the party affiliation of recent presidents.”30 Recent decisions have fueled the arguments of both the Court’s supporters and detractors: the landmark six-to-three judgment of June 15, confirming that the antidiscrimination protections of Title VII of the Civil Rights Act of 1964 apply to gay and transgender workers, can be argued as proof of its independence;31 while just two weeks later a judgment significantly freeing the President’s power to remove senior officials in the executive branch has raised serious fears.32 Many see the rot as much deeper than the Kavanaugh era, perceiving the Court as, not just a victim of authoritarian populist leaders, but itself an engine of democratic decay, having starkly degraded the structural functioning of the democratic system—including its watershed 2010 Citizens United decision on campaign financing and its weak response to gerrymandering.33 This view sees the present as merely a continuation, albeit intensified, of past practice—including the Court’s refusal to extend the deadline for absentee ballots in Wisconsin’s presidential primary in April 2020, which left citizens in the position of pitting their health and lives against exercising their democratic rights.34 Greenhouse described the decision as an exercise in “raw partisanship,”35 while Justice Bader Ginsburg’s dissent characterized the majority’s judgment as not only permitting “massive disenfranchisement” but endangering “the health of the Nation.”36 What might have happened with a stronger decision in line with CPPT? Had the Court extended the date for absentee ballots, raising the risk of a Republican loss and setting a precedent that could vastly transform the electorate for the November presidential elections, might it have unleashed serious political attacks—or even non-compliance? With increasing political pressure on courts, claims of absolute presidential power, and denial of the existence of any objective institution outside the realm of partisan contestation,37 we have strayed far from the “waspish civilities”38 of yesteryear, where (despite serious deficiencies in the democratic system) US governments could still be trusted to comply with rulings they bitterly opposed. Yet, it is not merely about this government. Perhaps more problematic is that CPPT tends to characterize problems as isolated, aberrant, or limited malfunctions, when the US political process as a whole faces multiple deeply rooted challenges arguably beyond judicial remedy. For instance, in response to the Supreme Court’s 2019 decision in Rucho v. Common Cause39 that partisan gerrymandering is “incompatible with democratic principles” but non-justiciable, Levinson argued that even adopting Justice Kagan’s (minority) solution would not have provided “a genuine cure for what ails us as a political system.” The only remedy would be for a democratic movement to “rise up” and push for a constitutional convention.40 Even this may be insufficient. Gardbaum’s framing of the 2017 tax law, for example, as an instance of “undue influence and corruption of the lawmaking process”41 elides the structural symbiosis of Americans for Prosperity (AFP) and the Republican Party, which blurs the division between the two, and leaves a form of “shadow party” in place, distorting the political process, which even constitutional reform would not address.42 That said, even if CPPT faces clear limitations, it remains a valuable yardstick. For instance, we can see the legitimacy of the Polish Supreme Court’s pushback against government and (captured) Constitutional Tribunal actions to end judicial independence as the institutional at the core of the democratic system by In the Gardbaum’s theory may more robust protection where degraded democracies courts as a central for threatened democracies, recent have been a reality about how we might reform courts, or even democratic through institutional However, as global juristocracy its we also guard against out the with the is any from the recent it is to avoid of any as courts never as or as they have so often been the is not While CPPT deeper about the of universal theories of judicial review, or at least the to more up their limitations, for to the democratic role of courts in our constitutional or more theory, a for courts to in guarding us all on which to and

Brendan T. Beery

The Senate proceedings occasioned by Dr. Christine Blasey Ford’s allegation against Justice Brett Kavanaugh left the then-nominee calling them a “circus” and observers confused about who was supposed to prove what and by what standard. Since the Senate is ill-suited to sorting out cases and controversies (and since the Ford-Kavanaugh matter will surely not be the last of its kind), the Senate should adopt standards (burdens of proof) for future judicial-nominee proceedings that it borrows from a sister branch—the judiciary. In any proceeding, the burden must be laded—it must be determined which party has the burden in the first place. It must also be weighted—it must be determined how much of a burden is to be imposed. This lading and weighting takes place with regard to both the burden of making out a colorable claim (the burden of production) and also the threshold for deciding in a party’s favor (the burden of persuasion). Courts often lade the burden of persuasion, in particular, on the party that (a) has the lesser interest at stake, (b) precipitates (as distinguished from initiates) the action, or (c) warrants special suspicion and scrutiny. This Article applies these principles to Senate judicial-nominee proceedings, noting that those proceedings sometimes involve two separate inquiries: (1) the qualification (or general suitability) inquiry, and (2) the inquiry into any allegation of specific and potentially disqualifying wrongdoing. The Article posits that, as to the qualification inquiry, the nominee has the burdens of production and persuasion and must show with convincing evidence that he or she is suitable for office. As to the allegation inquiry, although the accuser should have the burden of producing credible evidence to establish a plausible claim of wrongdoing, sound principles mitigate against the accuser bearing the ultimate burden of persuasion. That burden should rest with the nominee, who must show that the allegation is implausible, incredible, or unreasonable. Finally, this Article proposes a sliding scale for determining the precise threshold of proof required to meet this burden, focusing on the three different levels of federal judicial appointments (district judge, circuit judge, and Supreme Court justice) and accounting for the different interests involved as to each.

André Lecours

There is an exceptional character to the Canadian federation when it comes to dynamic de/centralization. Despite expectations that forces of modernization and globalization centralize federations, Canada’s overall “federal balance” has remained largely stable since 1867. Early in the federation’s life, there was decentralization in the fiscal realm and in a few policy fields (e.g., finance and securities as well as employment relations). The last several decades have witnessed decentralization in several policy fields, such as agriculture, citizenship, and immigration, and natural resource, but also centralization in such crucial ones as social welfare and language. The overall slight decentralist path of the Canadian federation occurred primarily through non-constitutional means. Court decisions played a significant role in shaping this path early on, but it is the territorial diversity of the country, primarily but not exclusively nationalism in Québec, along with the original centralized nature of the Canadian federation, that fundamentally accounts for why Canada has not centralized like so many other federations.

Alec Stone Sweet

Nico Krisch’s new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (BC), is a major contribution to the field of legal pluralism as applied to international legal regimes.1 In clear and accessible prose, BC develops a nuanced account of the structural features of global law from a wide range of carefully considered normative positions and empirical claims, and provides detailed case studies of pluralism in action. For readers of I·CON, I would regard it as essential reading. Given space limitations, my focus will be on the main disagreements I have with BC. Krisch stakes out complex positions, often through an “on the one hand [x], but on the other [y]” style of analysis that anticipates objections. My criticisms do not always capture the subtleties of the arguments and, for the sake of debate, are sometimes more sharply drawn than warranted. I will make three points. First, Krisch’s conclusions are heavily dependent upon a theoretical construction—a supposed dichotomy between “constitutional” and “pluralist”—that is, in fact, a false one. Second, “constitutional pluralism” is a structural feature of the national legal orders to which BC pays the most attention (European), belying the dichotomy. Third, the case studies in BC provide empirical support for an alternative view: at least in some domains, a rights-based constitutional order is being constructed on pluralist foundations. Driving much of the analysis of BC is a supposed distinction between two types—the constitutional and the pluralist—which Krisch characterizes as “competing models” (p. 226) and “true alternative[s]” (p. 71). BC sustains discussion of only one mode of constitutionalism, embodied in what he labels the “foundational” and “comprehensive” constitution. In its liberal-democratic guise, the constitution constitutes state and polity, and provides the normative underpinnings for constructing and challenging the polity’s legitimacy over time. The foundational constitution is assumed to be complete: it establishes a single “overarching legal framework” (p. 23) and “comprehensively determin[es] the structure, processes, and values” of the system (p. 53). In contrast to pluralism, constitutionalism entails “clear cut hierarchies” (p. 103), stable Grundnormen, settled “rules of recognition” (pp. 11, 72, 74), and “ultimate conflict norms” and “rules” (pp. 293, 296) whose purpose is to enable a designated authority to resolve conflicts among norms and institutions effectively. Pluralism is explicitly conceptualized in opposition to constitutionalism. Whereas constitutionalism is related to “depoliticization,” and the desire “to tame politics” through legal rules (p. 69), pluralism is about “politics” and “political deliberation” but not the “rule of law” or “rule-based processes,” (pp. 23, 69, 277). What is crucial is how Krisch applies these distinctions to the relationship between treaty-based systems and national legal orders, the central topic of the book. Krisch sums up his position as follows: Constitutionalism and pluralism are distinguished . . . by the different extent to which [each] formally link[s] the various spheres of law and politics. While pluralism regards them as separate in their foundations, global constitutionalism, properly understood, is a monist conception that integrates those spheres into one. As a result, rules about the relationship of national, regional, and global norms are immediately applicable in all spheres, and neither political nor judicial actors can justify non-compliance on legal grounds (p. 242; emphasis added).2 Thus, global constitutionalism can only find its expression in a strong form of hegemonic monism.3 The resulting model is indistinguishable from federalism. “A constitutionalist setting needs to define hierarchies between the polities,” Krisch claims, in order “to integrate them into a common whole,” a task that must include the promulgation of clear rules delineating the respective competences of all levels of governance, as well as fixing the “rules for the amendment of the overall constitution” (p. 275). I reject Krisch’s constitutionalism–pluralism dichotomy on both theoretical and empirical grounds. To get to the notion of “constitutional pluralism” one must specify what is simultaneously constitutional and pluralistic about the structure of a legal system.4 When considering the interface between international regimes and national legal orders, scholars typically identify, as the basic scaffolding of a constitution, jus cogens norms, other substantive fundamental rights, standards of procedural due process, and access to justice.5 These norms find expression in multi-lateral and regional treaties, are firmly supported by opinio juris, and overlap fundamental rights inscribed in the vast majority of national constitutions.6 What makes the system “constitutional” is an overarching normative structure:7 the code of rights that judges and other officials are under a legal duty to enforce; and a set of shared techniques that national and international judges have developed to adjudicate rights, in dialogues with one another. At the same time, the distribution of authority within this presupposed constitution is pluralistic: the system is comprised of discrete hierarchies, national and treaty-based, each of which has an autonomous claim to legitimacy. Sovereignty—the authority to enforce fundamental rights—is “decentralized,”8 not least, in that no “ultimate conflict rule” or “final authority” to resolve conflicts exists. Before turning to empirics, let me clarify the nature of the disagreement. First, to my knowledge, no one in the field would contest the basic elements of Krisch’s concept of pluralism: by definition, under conditions of pluralism, there is no “single decision-maker” applying “overarching conflict rules,” who will have the final word on many important legal questions (p. 296). Understanding legal pluralism, we would presumably agree, requires the analyst to take into account multiple vantage points at once, including the respective internal legal perspectives of actors operating in autonomous legal orders. Second, Krisch argues from a position that makes “constitutional pluralism” an oxymoron, a theoretical impossibility, whereas others in this same field have staked out a rights-based version of constitutionalism that accommodates pluralism.9 For Krisch, normative authority flows exclusively from hierarchy, rather than being grounded (my view) in the intrinsic legitimacy, binding nature, and integrating properties of fundamental rights themselves. Third, I reject Krisch’s law–politics distinction. Rights politics under conditions of pluralism are today heavily structured by law, legal discourse, and other rule-like norms and procedures, and they have steadily built new legal practices that serve to manage pluralism. As the empirics in BC show, rights politics and constitutional pluralism have been co-constitutive of one another. We have not moved “beyond constitutionalism,” rather, the age of global constitutionalism has barely begun. The false dichotomy is fully exposed when we examine the formal “architecture” of rights-based constitutionalism in Europe (ch. 4).10 For Krisch, “constitutionalism” implies a focal point of “ultimate authority” (p. 103), whereas “pluralism” accepts “conflicting claims to ultimate authority” (p. 70). When it comes to rights protection, however, many domestic constitutional orders in Europe are pluralistic. Either we have to accept that these national systems are no longer, or never were, truly constitutional, or the theoretical framework of BC must be rejected. As has been extensively documented,11 not only have conflicting authority claims between national high courts not been resolved, they have generated the kind of inter-jurisdictional, and jurisgenerative, politics that Krisch associates with pluralist orders. To illustrate, Krisch (pp. 14–17) argues that three basic strategies are available to a jurisdiction (X) when it is threatened by the lawmaking and supremacy claims of an external jurisdiction (Y), when Y seeks a change in how X takes decisions and makes law. First, X can pursue “containment,” by working to “limit the impact” of Y, in order to maximize its own autonomy and minimize disruption to standard ways of doing things. Second, X can seek to “transfer” the underlying logics of its ways to Y, thus lowering the costs of adjustment. Third, X can “break” with its established repertoire and, in effect, embrace or leverage pluralism as a means of increasing its own relevance, flexibility, and capacity to constrain Y in the future. Krisch developed the framework to analyze pluralist politics but, in fact, it neatly applies to rights politics within national orders that possess multiple, functionally differentiated high courts (the majority in Europe). Consider bids on the part of constitutional courts to “constitutionalize” adjudication in the ordinary (non-constitutional) courts, through promoting the direct effect of rights. It is important to stress that this process, which is ongoing, is analogous to the Court of Justice of the European Union’s (CJEU) move to “constitutionalize” the EU through its doctrines of supremacy and direct effect. In Western Europe, constitutionalization has gone furthest in Germany and Spain, in the form of delicate accommodations forged by inter-court conflict and dialogue. Nonetheless, the supreme courts continue to marshal significant “containment” operations,12 and their “transfer” efforts often succeed. In Italy, the Italian Court’s bid for supremacy failed: a “war of judges” ended in a settlement that, in effect, codified pluralism. Under the so-called “doctrine of the living law,” the Supreme Court (Cassazione) has de facto the “last word” on statutory interpretation and application, accepting only the “persuasive authority” of the ICC’s jurisprudence.13 In France, the Constitutional Council has no formal means of imposing its rights interpretations on the Supreme Court (Cassation) or Supreme Administrative Court.14 Each of the three high courts is autonomous in its domain, and both supreme courts have positioned themselves to enforce EU rights and the European Convention of Human Rights (ECHR), even against statute. The outcome comprises a hugely important “break” with traditional separation of powers doctrine (the prohibition of judicial review of statute), while constituting a pluralist order within the French legal system. In Central and Eastern Europe, too, many national supreme courts have refused to accept the binding interpretive authority and supremacy claims of the constitutional courts.15 The Polish courts have negotiated their own version of the Italian “living law” solution; and in the Czech Republic, the Supreme Court provoked a “war of judges” when it “openly revolted” against the Constitutional Court. In his empirical study of this topic, Garlicki (a former judge of the Polish Constitutional Court and the ECHR Court) concludes: “constitutional courts appear as weaker participants . . . and, in case of conflict, they are not always able to deliver that last word.” Indeed, for constitutional judges, a strategy of “dialogue and persuasion” has been more effective than have efforts to prevail in an “open conflict” about ultimate authority.16 The development of European rights has further consolidated rights pluralism within national orders. Today, one finds multiple sources of rights that are judicially enforceable against all conflicting infra-constitutional legal norms, including statute; there are multiple high courts that enforce these rights; and often there is no agreed upon conflict rule or procedure to settle conflicts of norms and authority. In most national legal systems, three such sources of rights—the national constitution, the EU treaties, and the ECHR—overlap. Individuals have a choice of which source to plead, and judges have a choice of which right to enforce. Ordinary judges may seek to limit the impact of the jurisprudence of the European courts; but they may also prefer to apply it, rather than domestic constitutional case law, in order to enhance their own authority and subvert that of constitutional courts. The German labor courts, for example, have partnered with the (CJEU) to raise German standards of rights protection in employment law, regaining the authority they had lost to German Federal Constitutional Court (GFCC), which has been steadily marginalized. Indeed, the German labor courts have invested heavily in the development of EU rights, as a means of cajoling the GFCC to change its (less-progressive) positions.17 Authority conflicts between high courts within domestic systems have long been a primary source of pluralist interactions between the CJEU and national constitutional courts (a fact Krisch largely ignores in chapter 4). To take a recent, dramatic example, in 2010, the Czech Constitutional Court declared a part of the CJEU’s ruling in Landtová to be ultra vires under Czech constitutional law, a first in the EU. The ruling was an attempt to discipline the Supreme Administrative Court, which had sent the Landtová reference to the CJEU in the first place. In response, the Supreme Administrative Court denied that it was bound by the Constitutional Court’s decision, and referred the matter to the CJEU, clearly indicating that it disagreed with the Constitutional Court on both the merits and the authority claim (the case is still pending before the CJEU). This is domestic constitutional pluralism in action, as structured by the legal enmeshment of European and national systems of rights protection. Krisch analyzes such authority conflicts as if they were primarily between a European court and a national constitutional court, thus missing an essential part of the story. With respect to the ECHR, all 47 full members of the Council of Europe have now incorporated the Convention (through constitutional provision, legislative act, or judicial decision) in a form that provides for the judicial review of state acts, including statute, under the ECHR.18 In all but two states (Ireland and the UK), judges must refuse to enforce statutes judged to be incompatible with the ECHR. The domestication of the ECHR has diffused judicial review powers with respect to rights claims to all national judges, and institutionalized constitutional pluralism at the domestic level. In Belgium, the Constitutional Court has that the ECHR but infra-constitutional which the Supreme Court to that the ECHR its autonomy the Constitutional Court. courts are in their respective domains, but neither can its will on the Krisch such a “constitutional” or In the Italian Constitutional Court a strong that Italian judges are to national law in of the ECHR and, a conflict is to the matter to the ordinary judges this while their own authority to refuse to apply a on grounds of with the In the of a which is to the of the the has no means of its own case law. In France, the and the de facto of rights is the ECHR, not the national constitution, and in and much of Eastern and Europe, new of rights were on the but the point be national rights protection in Europe today is both constitutional and pluralistic. The that Krisch to the hierarchies, conflict final or to the of his In chapter Krisch a a whose on the constitutionalism–pluralism dichotomy. the were a constitutional he claims, we would to find a European rights law with the ECHR at its (p. one finds pluralism. In with his basic Krisch by national constitutional courts to supposed claims of the CJEU or the Court as against the “constitutional (pp. In fact, such in of the constitutional pluralist constitutionalist pluralist would a constitutional court to by formally the national constitutional order to the constitutional judges to their own supremacy within their own domain, and to in the politics of pluralism, including both and with the European courts and their own national supreme courts. This is, in fact, what has While Krisch he all but ignores the of “transfer” and even when has been by the same ruling Thus, he the only in of BC is on the fact that, in this same decision, the German Court a clear “break” with establishes a strong that all German judges are to apply the Court’s jurisprudence when it is on in including when is the only to a of the fundamental in the The ruling also the constitutional Individuals can now a of German basic that or to properly take into account the European Court’s case law, an by the Constitutional have further the of the Convention at The support a about European rights politics that to be with BC. Given formal in the (the of the Court’s case law within national orders will the constitutional of the overall and the pluralism of domestic systems of rights protection. This is, in fact, what is in most BC three detailed case studies of pluralism that, in my provide strong empirical support for the of constitutional The that a pluralist constitution can be built through interactions between autonomous legal orders. The claim to the the more are the rights-based interactions between different legal orders, the more it will be that a constitutional jurisprudence of pluralism will and a legal structure to these Whereas Krisch the pluralism of European rights protection in chapter it is also clear that his discussion is also about in a as Krisch (pp. constitutional stress of such as judicial and other of What about the case studies in and of BC on the that the Council developed the on the in Krisch the of are and for and that only a are to (pp. Whereas the Council had all but rights other the various rights as well as a of national courts the for to provide with due process, including the means of challenging their on the and access to an judicial authority. The chapter with an analysis of the CJEU’s which EU to review under EU fundamental rights, and the In response, the Council an to and to make formal on for The empirics of this case provide strong support for the constitutional pluralist which the structure of rights, and for rights-based conflict into constitutional Under this the of the on “constitutional” features when to it on rights grounds before and courts. courts and the CJEU fundamental rights in both national, regional, and international law, and a style to In Krisch’s judges are the central of the pluralist which he in of the and of international and national levels of (pp. as BC the extent of pluralist to be on the of rights and other constitutional Indeed, the would state that of the CJEU, at the of and to the of a and process, to the . . . of the of the BC was for of the to as Krisch had (pp. In the Court of the EU a it would in of the within the of the the and long the by the clearly to of effective judicial The the at while as the provoked by The established by the Court neither for judicial procedure for review of decisions of the nor for a to that be available to the in order to to The also the fact that an would within the that is, an to an from the In of and under from and other the Council the of the codified procedures, and with and the of the to will now prevail there is not to it, in which case states further are if the is to be than two the of the on Human Rights and While that the Council to and had due process, that the new system still not international rights standards due or to a strategy on the part of courts long as due is not at the when or as national European courts will to judicial review over the national the ended by more if by the would make it that national or European courts to the procedure of the before their jurisdiction in to the national or European To the has resulting in decisions to the one and one (the are the Council the who had the European courts as well as national This is but the now has a The is also about The how conflict the GFCC and the over supremacy claims serve to rights-based constitutionalism in Europe, the fact that supremacy conflicts were never firmly Krisch style as a for the and norms” (pp. that are for the of rights-based pluralism within when rights are not central to pluralism, the of constitutional is how in and European to and generated in response, Krisch European courts are now with law in this the fact that the CJEU had that the do not possess direct effect within the EU such interactions may take on constitutional for now they to on grounds. as in his review of most global and standard setting in such as and is today generated through that the of and state While much of is pluralist in most of it is not constitutional in BC is the most important on the development of legal pluralism at the of not international regimes and national legal orders. Given the my focus has been on the constitutional of the book. I have three main points. First, the dichotomy is a false one. now legal systems as both constitutional and pluralistic for of empirical Second, when it comes to rights protection, most domestic constitutional orders in Europe are in fact pluralistic. As Krisch legal pluralism and authority conflicts often hand in and we find both within national constitutional orders. Third, the notion of “constitutional pluralism” the in BC than the framework from the dichotomy. The provides strong support for rights-based constitutionalism when rights in fact, on the and when courts, are major as one would we find of constitutional pluralism when rights are not in and when courts are not the main

Violeta Beširević

Before the Constitutional Court of Serbia, there is a pending case on reviewing constitutionality and legality of the Autonomous Province of Vojvodina's Statute. 30 MPs, one civic organization and one individual initiated the proceedings, back in 2009, right after the Statute came into force. This article, which relies on author's amicus curiae brief in the mentioned case, offers three claims. First, the author claims that Serbia is not a typical unitary state, as for example, France or Romania, since it has gained several important characteristics of a regional state. Thus, for the time being, according to a vertical division of authority, Serbia can be defined as a state that is neither unitary nor regional, but rather a state 'in between' these two forms. Second, the author argues against an idea of textual dogmatization of the Constitution employed by the initiator of the proceedings (MPs), and after a deep analysis, rejects most of the arguments aimed at invalidating the provisions of the Statute, finding them unpersuasive and unfounded. Third, starting from the citizens' sovereignty, on which the political autonomy of Vojvodina is based (Articles 12, 176 and 182 of the Serbian Constitution of 2006), the author urges safeguarding the political decentralization guaranteed by the Constitution, since it gives more power to citizens in public decision-making and strengthens the democratic principle on which the Republic of Serbia is based. It is also stressed that a potential invalidation of the statutory provisions concerning the protection of national minorities, would endanger this protection, since, in accordance with the principle of subsidiarity, the constitutional protection is the most effective if implemented by the act of the regional authority of the territory where the members of national minorities traditionally live in a great number.

Patricia Cochran

One of the questions that lies at the heart of the Insite case is this: what kind of connections should exist between the law and the people it governs? In this short comment, I explore one of the ways this question informs the treatment of evidence and proof by focusing on the section 7 aspect of the case and the question of arbitrariness. With the goal of inviting discussion, I suggest that in cases involving the constitutional rights of marginalized individuals and communities, the concept of the “burden of proof” can provide a way to help understand what is at stake, and what criteria we might use to relate the burden of proof to values of equality and justice.

Paul E Vaglicia

In 1995, a law professor at the University of Chicago Law School dubbed the Supreme Court confirmation hearings “vapid and hollow” and added that they, as implemented, “serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” Ironically, this same law professor, Elena Kagan, later endured the confirmation hearings as a nominee and currently sits as the 112th Justice of the U.S. Supreme Court. While she may be one of the few to ever reach a seat on the High Court, she is not alone in her assessment of the Supreme Court’s lackluster confirmation process. Other legal scholars have called the process a complete mess and likened it to a circus or a kabuki dance.\nAlthough there are multiple aspects of the confirmation process that could use reform, this Note draws attention to one flaw of the confirmation hearings that many overlook—members of the Senate Judiciary Committee (the “Committee”) use the confirmation hearings as a forum to voice their own political beliefs instead of focusing their undivided attention on the qualifications of the nominee. Since senators do not focus entirely on the nominee, they are not thoroughly examining the nominee’s fitness for the Court. As nationally televised events, it only follows that senators use the confirmation hearings as a medium to speak to theirconstituents. One may ask why this matters or point out that one would expect this of senators; after all, senators constantly have their campaigning caps on, especially when receiving national attention. However, these responses ignore the negative effects of senators placing themselves, rather than the nominees, in the confirmation hearings’ limelight. If the purpose of confirmation hearings is to determine the qualifications of a nominee and ensure that he or she is fit for the Court, then this purpose goes unfulfilled if constituents influence senators’ lines of questioning. Senators consume themselves with how their constituents back home will view their questioning and fail to focus on what is at stake—the confirmation of the nation’s next Supreme Court justice. If the purpose of confirmation hearings is to evaluate the nominee, then this purpose would best be served by having undivided attention focused on the nominee and his or her answers. If senators have an ulterior motive—engaging in an open dialogue with their constituents—then the confirmation process does not effectively serve its primary purpose.\nPart I of this Note investigates the confirmation and appointment power that the Constitution delegates to the Senate. Part II provides a detailed history of the confirmation process and its dramatic evolution over the last century, which is crucial in order to fully comprehend today’s process and its problems. Part III, after examining the media’s role within the confirmation process and the publicity that the confirmation hearings attract, offers proof that senators are cognizant of their national audience and highlights specific examples of senators addressing their constituents via the confirmation hearings. Part IV concludes by setting forth three possible solutions to the overarching problem: implementing anonymous questioning of the nominees through Committee representatives; appointing experts to question the nominees in the senators’ places; and replacing video recording of the hearings with audio recording.

Jay D. Aronson

No abstract is available for this record.

Sujit Choudhry

R. v. Oakes is widely regarded as one of the most important judgments interpreting Canada’s Charter of Rights and Freedoms. In addition to laying down its famous proportionality test to assess the reasonableness of limits on Charter rights, it clarified the Supreme Court of Canada’s Court’s interpretive methodology for Charter cases, perhaps most centrally that rights are of presumptive importance, and limitations the exception that are only acceptable if governments meet a demanding test of justification. The citation of Oakes by courts in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the United Kingdom, Vanuatu and Zimbabwe has made Oakes one of the central models for rights-based constitutional adjudication. So the almost immediate retreat from Oakes is of broader constitutional significance, both domestically and abroad. There is a dominant narrative on what the true legacy of Oakes and the retreat from Oakes are. The argument is that Oakes set out a uniform approach for assessing justifiable limitations on Charter rights irrespective of differences in context, but that in the decade following Oakes, the Court searched for criteria of deference, to reliably and predictably categorize cases where deference was warranted and those where it was not. These categories were not applied consistently by the Court, and, indeed, produced disagreement within the Court over how they should be applied in specific cases. Underlying both trends were concerns regarding the cogency of the distinctions employed by the Court to delineate the boundaries of these categories. Although the dominant narrative captures much of Oakes‘ legacy, it misses much of what is at stake in many recent s. 1 cases, and by implication, what the true legacy of Oakes and the retreat from Oakes are. Oakes created an enormous institutional dilemma for the Court, by setting up a conflict between the demand for definitive proof to support each stage of proportionality analysis, and the reality of policy making under conditions of factual uncertainty. The legacy of Oakes is that the central question of s. 1 is how the Court should allocate the risk of factual uncertainty when governments legislate under conditions of imperfect information. If Oakes is a comparative model for proportionality analysis under other rights-protecting constitutions, then these kinds of problems are not particular to Canada. Foreign courts would be wise to grapple with these difficulties with the benefit of two decades of reflection by Canadian courts instead of simply applying the Oakestest in its original and undeveloped form.

William E. Thro

In America free public education is a constitutional value. Yet, although free public education for all is a constitutional value, America's public schools remain ravaged by savage inequalities, many of which are the direct result of significant financial disparities. Given the obvious conflict between the constitutional value of free public education for all and the funding parities created by the States' school finance systems, it is not surprising that the courts have been asked to intervene and vindicate the constitutional value of free public education for all by declaring that the current system of financing the schools is unconstitutional. However, a judicial solution to the problem has proved as elusive as a legislative or executive solution. Paradoxically, a major reason for the States' failure to adequately finance the achievement - the constitutional value of quality education for all - is the existence of other constitutional values. In other words, there are values within the American constitutional system that make it extremely difficult to achieve another constitutional value. This article explains how two American constitutional values - judicial restraint and decentralization - work together to prevent adequate funding of another constitutional value - a quality education for all.