Nov 19, 2025 Jedidiah Kroncke
Popular dissatisfaction with economic life has emerged as a growing challenge to countries across the globe. Magnified by growing inequality, this dissatisfaction stems from a sense that dominant economic institutions can no longer be relied upon to provide citizens with predictable and meaningful economic lives. Yet, even as nations have rejected left- and right-wing incumbents alike, there has remained only episodic engagement with one of the longest-standing alternative traditions for governing economic activity with a proactively social vision: cooperatives. In his article Investor Shares in Cooperative Financing: A Comparative Legal Analysis, Ville Pönkä provides a revealing primer on the challenges of promoting cooperatives through an incisive comparative analysis of “investor shares” as a means for cooperatives to raise capital.
For those less familiar with the literature on cooperatives, Pönkä provides a compact and effective introduction while outlining its interface with modern comparative corporate governance scholarship. This linkage is inherently valuable, as the particular nature of cooperatives has often led them to fall outside the analytical focus of both corporate and labor law scholars—although their conceptual and normative concerns significantly overlap with those of cooperative governance. And while, for practical and path-dependent reasons, the study of corporate governance has become one of the richest and most sophisticated areas of comparative legal analysis, it still largely omits cooperatives. As such, Pönkä’s survey of the statutory regimes governing cooperative forms is notable as it draws on diverse national examples—especially valuable given that much of the empirical work on cooperatives focuses on domestic audiences in non-English-speaking countries. Moreover, it does so while bringing the issue into direct conversation with classic and contemporary issues in corporate governance on a global scale.
For many, the term “cooperative” may evoke broad, utopian sentiments. But Investor Shares provides a clear and precise overview of the technical definitions and internal logics by which modern cooperatives are governed and regulated, even given their organizational variability. Pönkä emphasizes the fundamental principle of membership-based ownership in cooperatives—whether of the producer, consumer, financial, or worker variety. What further distinguishes cooperatives is their orientation to “maximize utility instead of profits.” (P. 343.) Here, “utility” is an amalgam of the direct services provided to member-owners and other social values—often open to quite heterogeneous member self-definition.
Pönkä provides this accessible background review to explore the tensions that arise when cooperatives seek capital from non-members. Among his many catholic studies of economic forms, Henry Hansmann noted that most modern companies could be characterized as “capital cooperatives,” whose organizational diversity was driven by their means of managing sources of internal and/or external investments. Pönkä outlines how formal “cooperatives” face similar challenges but are traditionally constrained by their commitment to have members be both the primary contributors of capital and co-equal participants in enterprise decision-making.
Such capital contributions are sometimes referred to as “member shares” but differ in their characteristics from those typically associated with shares of large public companies. Pönkä outlines the distinctive characteristics of traditional cooperative shares, including fixed governance equality among members regardless of capital contribution, free redeemability (but at par value), limited rights to dividends, and restricted transferability. Even here, there is significant intranational and international heterogeneity among cooperative regimes. Pönkä’s comparative expertise is on display as he effectively integrates the governance concerns these characteristics generate across quite different national regulatory frameworks. He also highlights how these attributes have driven innovations among individual cooperatives and the associations dedicated to their promotion. Another virtue of Investor Shares is that Pönkä situates investor share reforms within the longer trajectory of cooperative regulation, whose global and historical scope many may not initially appreciate—even if directly addressed or promoted in many nations’ constitutions.
The divergence of these characteristics with shares in non-cooperative enterprises presents the “capital constraint paradox.” (P. 344.) Cooperatives routinely require capital infusions for the same reasons as non-cooperative enterprises. However, they often face difficulties accessing debt or equity markets, for whom their non-normative organizational differences are off-putting, either due to general unfamiliarity or a lack of predictable returns on investment. It is this “paradox” that has increasingly pushed many countries to enable cooperatives to offer “investor shares” that deviate from traditional cooperative principles. Such investor shares stand out less among the many experiments in varying how cooperative profits are distributed, but do immediately introduce complications regarding how the divergent characteristics of these shares interact with cooperative governance.
The comparative breadth of Investor Shares reveals how diverse investor share reforms have been. Many countries have allowed cooperatives to freely design new governance arrangements on a purely ad hoc basis, such as the adoption of hybridized forms enabled by Limited Cooperative Associations statutes in several U.S. states. Other countries still mandate limits to investors’ governance participation, or outright ban any deviation from traditional cooperative governance, such as in Denmark.
Pönkä provides a more in-depth examination of Finland’s regulation of investor shares, especially probative as the country has one of the highest numbers of cooperatives throughout its economy, even as its government has remained relatively unmotivated to promote cooperative principles. After investor shares were first enabled in 1989, Finland subsequently enacted a series of liberalizing reforms to further encourage the use of investor shares, given their limited uptake. However, these reforms have never achieved significant success, even when cooperatives were allowed to declare profit maximization a priority value and investors were given veto rights over cooperative decision-making.
At this point, no one appears to be satisfied with investor share regimes. More liberalized and flexible regulatory regimes exacerbate the same numerus clausus-like informational issues for outside investors, and proponents of cooperative principles worry that they will incentivize existing trends of “demutualization” by prompting directors to prioritize quantifiable profits in how they interpret their fiduciary duties. (P. 357.)
Beyond its own internal conflicts, what is most provocative about Pönkä’s study is how directly it relates to larger controversies about corporate governance in “capital cooperatives.” In recent decades, stakeholder or stewardship models of corporate governance have taken center stage in global debates, stemming from the same aforementioned dissatisfaction with the social consequences of profit-maximizing and director-primacy models. As academically popular as some of these alternatives have become, their practical application has raised so far intractable parallel doctrinal and institutional questions about how to conceptualize the relevant governing constituencies and how to concretize consideration of the potentially limitless alternative values beyond profit maximization.
These alternative governance models also replicate a core dilemma that cooperatives have long faced—their ability to exist within a larger economic ecology dominated by a different evaluative logic. Historically, the United States was one of the earliest and most prolific sites of 19th– and 20th-century cooperative experiments, as it appeared to provide new and “empty” spaces for entire communities to form around cooperative logics. This phenomenon led to the historical density of mutual insurance, credit unions, and producer cooperatives in the American Midwest that drew Hansmann’s attention. However, modern cooperatives rarely have the luxury of even localized densities and must interface with predominantly non-cooperative institutions while competing in national and international markets. As a result, Pönkä notes that investor shares are just one of many financing innovations that cooperatives have been forced to creatively utilize, ranging from crowdfunding to creating for-profit subsidiaries.
Here again, investor shares in cooperatives are not an idiosyncratic curiosity, but are a sub-species of larger dynamics within corporate governance. Any fixed relationship between ownership, profits, and governance for traditional share investing has been increasingly subject to aggressive customization, beyond critiques of the substantive reality of “shareholder democracy.” Non-voting shares and preferred stock are prominent examples, but almost fully customized regimes are increasingly apparent—notably those in both the United States and China which grant technology founders with minority stakes substantial retained powers, including veto rights. Such contractual modification is even now pervasive among credit unions, where, although the most successful internationalized form of cooperative economics, almost all new members unknowingly assign away proxy rights as they click through digital sign-up pages.
Pönkä’s precise review of the issues provoked by investor shares thus convincingly ends with a call to reconsider the ecological regulatory restraints on cooperatives, specifically in antitrust and tax law, rather than focusing on private legal engineering. Indeed, many non-worker cooperatives have long struggled with how to include non-member employees in their governance structures to promote broader social values—if at all, in the case of producer cooperatives. Here, Pönkä’s insights resonate with my own experience studying Employee Stock Ownership Plans, which similarly seek to reorient capital cooperatives towards worker well-being but centrally struggle with their routine separation of share ownership from governance rights through trust mechanisms. It is not coincidental that the long tradition of promoting “employee ownership” in the United States has experienced an uneasy, if not systemic, sociological split with worker cooperative proponents, precisely over whether the issue of worker empowerment is central to employee ownership promotion.
Methodologically, Pönkä also instructively outlines issues that have, perhaps unavoidably, arisen from the relative academic and political marginalization of cooperative governance. Though he has his own sympathies, Pönkä admits frustration that all too many studies of cooperatives are carried out by those seeking to compensate for this marginalization through less than rigorous comparative legal analysis. This can manifest as a tendency to overgeneralize cooperative successes (again, an inherent challenge for a minority economic practice), but more acutely in a lack of critical comparative analysis that does not take as seriously the very real national and sub-national regulatory variability under which cooperatives of different sorts operate. This is, in itself, the core challenge of comparative legal analysis, and an issue that the proliferation of cross-national comparison has often aggravated, rather than ameliorated.
Pönkä’s sober and comprehensive review thus necessarily generates more questions than answers, much like the current global anxiety over how to reorient economic institutions towards sustainable and meaningful lives for modern citizens. Ultimately, no amount of legal genius will ever be able to fully resolve what are essentially political problems related to the distribution of decision-making power within a given society. Still, the type of integrative comparative work that Investor Shares represents demonstrates how unproductive common framings, such as “socialism” or “capitalism,” can be when attempting to address concrete issues of economic organization that grapple with some of the most inveterate challenges of the human condition.
Oct 20, 2025 Rosalind Dixon
In her important new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law, Michaela Hailbronner turns her attention from constitutional transformation to its absence, or from the idea of large-scale, successful constitutional change to that of “Institutional failure … as a shorthand for a range of other terms such as policy or state failure, dysfunction and state failure, dysfunction, and structural or systemic deficits.” (P. 3.)
Institutional failure, Hailbronner argues, has been a focus of other disciplines such as economics and public policy for a long time—but lawyers, she suggests, are “as usual, late to the party.” (P. 3.) This is an omission to be rectified: By paying attention to discourses around institutional failure, we gain new insights about public understandings, “relationships and institutional self-perception.” (P. 5.) With a focus on institutional failure, new justifications for the expansion of institutional authority or action likewise come into view. This is true, Hailbronner suggests, whether those arguments are made explicitly or implicitly: the choice surely depends on who is talking and in what context.
Similar virtues apply to the study of constitutional amendment failure, or constitutional non-amendment: studies of this kind not only shed light on the necessary preconditions for successful constitutional change, they can also reveal deep-seated commitments or values within a society, which are impervious to change, and hence candidates for being understood as politically entrenched, small “c” constitutional values.
In either event, Hailbronner shows that arguments of this kind resonate both in theory and existing practice—including at an international level (Pp. 65-66, Part III), and in national contexts such as structural reform litigation. (Chapter 4.)
This claim fits with a growing body of comparative work on the idea of constitutional judicial review by courts as “representation-reinforcing”—or what elsewhere I have called “comparative representation-reinforcing theory” (‘CRRT’) and Stephen Gardbaum labelled “comparative political process theory” (‘CPPT’). Hailbronner herself notes this connection (Chapter 5), and the close affinities between her work and my own on “responsive” approaches to judicial review. (Pp. 13, 104-6.) That work, for example, makes arguments for broader and stronger forms of judicial review given evidence of three broad forms of institutional failure or dysfunction: democratic blind spots, burdens of inertia and sources of institutional or electoral monopoly power.
There are similar affinities with the work of other CRRT/CPPT scholars, including Landau, Cepeda Espinosa, Langford, Peterson, and Gardbaum. Hailbronner specifically acknowledges the connection to Landau’s work here (P. 49)—including his work on institutional failure. (P. 39.) She also usefully connects her own and others’ ideas in this tradition to theories of democratic experimentalism (Pp. 43-49), including leading American theories of experimentalism centred around structural litigation. (Pp. 84-88.)
Hailbronner’s arguments are likewise sympathetic to arguments about the shared—or in Aileen Kavanagh’s language “collaborative”—nature of institutional authority and responsibility for constitutional enforcement. (Pp. 41-42). This includes the sharing of authority between courts and legislatures, but also “fourth branch” or “guarantor” institutions.
Hailbronner, however, goes further than most scholars working in this tradition in applying a lens of institutional dysfunction to a wide range of institutions—including those between national and sub-national institutions, national and transnational institutions, and institutions at a transnational level. (Part III.) This is an important contribution. Constitutional scholarship is often rightly criticized for being overly court-centric. Not so Hailbronner’s work.
As constitutional scholars, we are often called out for overlooking the complex interactions between different levels of government, and sources of law. The same cannot be said for Hailbronner, given the extensive attention she gives to international, regional and national contexts, including federal systems. (Pp. 24-25, Part III.)
Hailbronner is also attentive to the two important dimensions of arguments from institutional failure: what might be called the “corrective” and “reform” argument. Corrective arguments are often backward looking in focus—or focused on the task of repairing past damage, or righting past wrongs. Reform arguments, in contrast, focus on how to make institutions function better in the future—and therefore on increasing institutional capacity, or improving institutional processes.
Hailbronner provides illustrations of both dynamics as arguments from failure for more active institutional oversight. The real challenge for Hailbronner’s theory—and similar CRRT-style theories—is how to account for the need simultaneously to promote institutional correction and reform. Too great a focus on reform can leave past harms unaddressed, and individuals lacking basic forms of justice. But too great a focus on correction can have its own perverse consequences.
As individuals, if our mistakes are consistently corrected by others, there is little reason to put in the time or effort needed to make positive change. The same applies to institutions. Too frequent a form of external correction of institutional failure can mean that institutional leaders lose the motivation—and sometimes even the public justification—needed to engage in reform. This is what Mark Tushnet calls the problem of “democratic debilitation”. And as Tushnet himself (along with Madhav Khosla) notes, part of the aim of public law should be to enhance state capacity—in all areas, including the constitutional domain. (P. 107.)
Hailbronner is alive to this trade-off. (Pp. 34-37.) This is one reason she develops a form of balancing or proportionality test that allows us to test the strength of arguments from institutional failure, compared to arguments from institutional restraint: a test that invites institutions to “assess the functionality, necessity and costs associated with the transgression of an institution’s ordinary role”, along with the “the likelihood of success” of any institutional intervention. (Chapters 5-6.) That is, prior to any intervention based on arguments from failure, Hailbronner invites courts and other guarantor institutions to consider (to paraphrase): (i) the number of alleged constitutional violations, (ii) the time frame involved (and whether they are repeated or not); (iii) their scale and gravity; and (iv) whether they were intended, or the product of government recklessness, negligence or oversight (Pp. 111-125), as well as the potential costs of intervention, in terms of institutional capacity, authority and motivation. (Chapter 6.)
This is a core part of the book’s contribution. Arguments from institutional failure are powerful, but must be carefully balanced against valid counterarguments—stemming both from traditional separation of powers concerns, and more functionalist concerns about institutional over-reach and debilitation. They must also be developed and applied with the risk of misuse/abuse in mind. And this is exactly what Hailbronner attempts to achieve in the latter part of the book. (See especially Chapter 9.)
The only remaining question is whether institutional actors themselves will be capable of applying this form of balancing test in a manner that shows fidelity to these concerns. Institutional capacity is one of the most frequent challenges posed to my own work on CRRT—and a powerful one. Do judges, for example, have the capacity accurately to assess the necessity of their own intervention? Or are they prone to over-estimate their own institutional significance, or efficacy, and hence duty to intervene to correct other institutions’ failures? Or conversely, will some judges under-estimate the need for such intervention, and adhere instead to a more formalist commitment to the separation of powers? The same could be said for a range of fourth branch or guarantor bodies, or even legislators.
One answer to this could be that Hailbronner’s test could usefully be elaborated in various institutional settings to provide more concrete, rule-like guidance to institutional decision-makers about how to approach this balancing task. This, for example, is the approach taken by Cora Chan in her important new book on Deference in Human Rights Adjudication.
Another could be that Hailbronner’s project must be understood as involving two-stages: one stage, which is now complete, involves the articulation of a scholarly vision for an institutional role that depends on arguments from failure; and another, as yet incomplete stage, which involves socializing judges, legislators and members of the fourth branch in this vision, its rationale, and what it entails for them as institutional actors.
This seems to me to be at least part of the answer to the institutional capacity question, and one that is far from insurmountable. It does, however, stretch our own capacities as scholars. But if there is any scholar capable of meeting that challenge—it is surely Hailbronner. And other CRRT scholars will be standing right beside her, as she seeks to answer it.
Sep 19, 2025 Hoi Kong
Erin Delaney’s Mapping Power: Constitutionalism and Its Colonial Legacy provides a novel and compelling conceptual framework for thinking about the relationship between constitutionalism and colonialism. Professor Delaney labels this framework “coercive constitutionalism” and situates it in a body of comparative scholarship that (1) calls for constitutional law to be decolonized (P. 385) and (2) understands decolonization to be an ongoing process, rather than a “once-off political event marked by physical withdrawal of the colonial administration.” (Justin Ngambu Wanki & Carol C. Ngang, Unsettling Colonial Paradigms: Right to Development Governance as Framework Model for African Constitutionalism, 18 Afr. Stud. Quart. 67, 67 (2019), quoted at 385.)
As is appropriate for a text that appears in a collection honoring Mark Tushnet, Delaney draws on aspects of Tushnet’s scholarship to develop her framework. First, she invokes Tushnet’s “understanding of law as power and social structure” (P. 386) and its attendant methodology of rich description. Second, she adopts an approach that Tushnet labelled “adjectival constitutionalism,” which seeks to identify various kinds of constitutionalism, rather than accepting that “liberal constitutionalism simply is constitutionalism.” (Mark Tushnet, Editorial, Varieties of Constitutionalism, 14 Int’l J. Const. L. 1 (2016), quoted at 387.) These two aspects of Tushnet’s scholarship inform how Delaney develops the idea of coercive constitutionalism.
Part I of this review essay identifies essential elements of Delaney’s conception of coercive constitutionalism. Part II identifies her chapter’s contributions to the comparative law literature.
I. Coercive Constitutionalism: Between Popular Agency and Coercive Structures
According to Delaney, coercive constitutionalism examines “the mutually constitutive relationship between coercion and agency in the colonial and postcolonial contexts.” (P. 391.) The approach assesses how much informed consent exists in constitutional orders that are pervaded by coercive power structures. As set out by Delaney, coercive constitutionalism involves three interlocking inquiries:
close analysis of ongoing power relations, both in the shadow of, and operating parallel to, the colonial (or hegemonic) power; a clear understanding of the cultural and political context to identify those who did not (or were not invited to) participate; and an assessment of the degree or quality of freedom for those in fact deliberating or participating. (P. 391.)
The first inquiry requires a nuanced understanding of coercive mechanisms in colonial and post-colonial contexts. Agenda-setting is one notable means of coercion. It arises when “fundamental questions of constitutional choice” (Sujit Choudhry, Old Imperial Dilemmas and the New Nation-building: Constitutive Constitutional Politics in Multinational Polities, 37 Conn. L. Rev. 933, 933 (2005), quoted at 392) are settled in ways that serve the interests of domestic and foreign elites. For example, British colonial decision-makers in Africa included in new constitutions bills of rights (and created courts to enforce them) to protect elite constituencies, namely “white settlers, domestic urban intelligentsia and foreign investors.” (Ran Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions, 25 Law & Soc. Inquiry 91, 137-38, quoted at 392.)
The second inquiry assesses how broadly the public can deliberate within a colonial or post-colonial constitutional order. Delaney cites the work of Semaghen G. Abebe to illustrate how colonial constitutional systems compromised broad public deliberation by transplanting western political and legal ideas into Africa, thereby “undermining the well-entrenched, informal traditional values that guided the lives of ordinary Africans for centuries.” (Semaghen G. Aghebe, The Relevance of African Culture in Building Modern Institutions and the Quest for Legal Pluralism, 57 ST. Louis U.L.J. 429, 433-34 (2013), quoted at 393.)
The third inquiry assesses the quality of deliberation within a constitutional polity. Delaney draws on James Tully’s scholarship to argue that the quality of deliberation in a constitutional system is compromised when people are limited to debating within the rules set by the system, rather than about the rules. (P. 393.) Thus, if a colonial constitutional system has fixed the agenda for what people can deliberate about, the quality of deliberation in that system is compromised, even if the system encourages broad public engagement with its institutions.
II. Contributions to the Literature
Delaney’s framework for analyzing the relationship between constitutionalism and colonialism contributes to the comparative law literature in two ways. First, the framework provides a counterpoint to two earlier comparative accounts that dealt with related issues. Second, Delaney provides normative guidelines for the project of decolonization that flow from her account of coercive constitutionalism.
The first account against which Delaney juxtaposes coercive constitutionalism—“imposed constitutionalism” (P. 387)—was developed by Noah Feldman to analyze constitution-making under conditions of imperialism. Delaney seems to argue that imposed constitutionalism relies on an unduly demanding conception of agency. In Feldman’s account, an imposed constitution is one that is adopted without “the full agreement” of the people and thus undermines the value of self-determination. (P. 388.) Delaney argues that imposed constitutionalism has “limited purchase,” in part, because its articulation and use of self-determination as the standard for what counts as a democratic constitution is unrealistic. She asks: “[B]efore recent years, which ‘democratic’ constitutions could possibly meet this lofty ideal?” (P. 388.)
The second account against which Delaney argues—“transnational constitutionalism”—is drawn from the work of Frederick Schauer. Schauer shifts the focus away from the dichotomy that imposed constitutionalism draws between imposition and self-determination. He aims instead to understand how “mechanisms of political influence, economic incentives, regional cooperation and much else” determine “who influenced whom” in the “migration of legal and constitutional ideas.” (Frederick Schauer, On the Migration of Constitutional Ideas, 37 Conn. L. Rev. 907, 916, quoted at 389.)
Delaney identifies two shortcomings in transnational constitutionalism, which seem to indicate that the account pays insufficient attention to the role of coercion in colonial and postcolonial constitutional systems. First, Delaney argues that transnational constitutionalism fails to recognize the ways in which a colonial authority can exercise “covert coercion” when it “structures the available options and sets the boundaries of ‘acceptable’ borrowing.” (P. 390.) Second, she suggests that transnational constitutionalism does not explain how “[i]nfluence shades into coercion.” (P. 390.). According to Delaney, the line is drawn at the point where a population no longer has the “capacity to resist.” (P. 391.)
Delaney concludes her chapter by articulating coercive constitutionalism’s normative project. The three inquiries summarized in Part I of this review essay evince primarily descriptive or diagnostic objectives: “recognizing what has been created, how and from what starting point.” (P. 396.) The next, normative step in the coercive constitutionalist framework involves asking “How can agency be enhanced and coercion limited?” (P. 397.) She distinguishes her normative goals from those of comparative law scholars who focus primarily on undoing colonial power and revitalizing indigenous structures of governance. According to Delaney, that project of undoing “requires a view of current populations as denied genuine agency.” (P. 396.) By contrast, Delaney’s normative approach presumes the existence of agency in colonial and post-colonial contexts and seeks to enhance it.
Delaney finds evidence of coercive constitutionalism’s normative position in Jorge Farinacci-Fernós’s discussion of the 2009 Bolivian constitution. According to Farinacci-Fernós, the Indigenous population’s extensive participation in the Bolivian constitutional drafting process “carried enormous weight”, which was reflected in the substance of the constitution. (Jorge Farinacci-Fernós, When Social History Becomes a Constitution: The Bolivian Post-Liberal Experiment and the Central Role of History and Intent in Constitutional Adjudication, 47 Sw. L. Rev. 137, 150, quoted at 397.) The Bolivian constitutional order thus facilitated a meaningful exercise of Indigenous popular agency. Yet, features of the Bolivian constitution remain rooted in the colonial legacy of what Farinacci-Fernós calls “modern constitutionalism.” (Id. at 144, quoted at 397.) As a consequence, although the Bolivian reform affirmed the agency of the Indigenous population, it did not eliminate colonial “vestiges” in Bolivia’s constitution that were coercively imposed on that population. (P. 397.)
Delaney has contributed enormously to the field of comparative law by posing her normative question and providing an analytical framework within which it can be answered. I anticipate that scholars will take up the challenge of both answering the question and applying the framework in diverse colonial and post-colonial settings. And I believe that Mapping Power: Constitutionalism and Its Colonial Legacy will emerge as a classic in the field.
Editors note: Reviewers choose what to review without input from Section Editors. Jotwell International Law Section Editor Erin Delaney had no role in the editing of this article.
Aug 6, 2025 Sanja Pesek
In an era marked by escalating political polarization, institutional erosion, and mounting threats to democratic governance, the volume Drivers of Authoritarianism: Paths and Developments at the Beginning of the 21st Century, edited by Günter Frankenberg and Wilhelm Heitmeyer, offers a profound and analytically sophisticated examination of contemporary authoritarian dynamics. Grounded in legal, sociological, and political theory, this interdisciplinary collection is particularly timely against the backdrop of what empirical data shows to be a global authoritarian trend.
Throughout its seventeen chapters—covering the theory and empiricism of authoritarianism, in its global, local and state iterations, via media, identity politics, capitalist economy, and social crises, this volume raises fundamental normative and empirical questions: What constitutes legitimate authority in an age of technocratic governance and media-saturated political life? How can democratic polities ensure robust oversight and inclusive participation without lapsing into proceduralism or populist reaction? What forms of institutional imagination and civic mobilization are required to resist authoritarian retrenchment?
As the 2025 Varieties of Democracy (V-Dem) Report—“25 Years of Autocratization – Democracy Trumped?” documents, liberal democracies have been steadily shrinking to become the least common regime type globally (only 29 in 2024). For the first time in more than two decades, the number of autocratic regimes (n=91) has surpassed that of democracies (n=88). Consequently, approximately 72 percent of the global population now resides under autocratic rule, a development examined by the authors of Chapters 2 through 5 in Part II of the volume. The mechanisms of authoritarian entrenchment—media censorship, electoral manipulation, and repression of civil society—are widespread. While some countries have exhibited democratic resistance (V-Dem identifies 19 states as currently undergoing episodes of democratization), the predominant trajectory remains troublingly authoritarian. In this alarming context, Frankenberg and Heitmeyer’s volume offers crucial conceptual clarity on the main drivers causing this transformation.
One of the volume’s chief contributions lies in the careful conceptual distinctions it draws between populism, illiberalism, and authoritarianism—terms often conflated in both popular discourse and academic analysis. In the introduction, the editors convincingly argue that populism, despite its ubiquity in political science literature and public commentary over the past two decades, lacks a stable analytical framework. The term is frequently deployed to denote a broad spectrum of political phenomena, ranging from participatory movements enhancing democratic inclusivity to strategic appeals utilized to erode democratic norms. As such, populism, in this volume, is shown to be too conceptually imprecise to serve as an adequate explanatory category for contemporary wave of autocratic tendencies.
Similarly, the concept of illiberalism is critically examined. The authors maintain that illiberalism is parasitic upon its liberal twin, and thus lacks the contours of a coherent alternative. They argue, quite compellingly, that the term “illiberal democracy” is an oxymoron, as the absence of liberal democratic fundamentals—including civil liberties, checks and balances, and an independent judiciary—precludes the designation of such regimes as democracies at all. Illiberalism, then, is better conceptualized as an ideologically thin veil for authoritarian aspirations.
In contrast, the concept of authoritarianism is shown to offer both empirical richness and normative traction. Drawing from sociology, political theory, and legal studies, the volume posits authoritarianism not merely as a formal regime type but as a dynamic relationship between rulers and the ruled—one in which authority is recognized, often voluntarily, but may become distorted or overextended, leading to coercive practices. Authoritarianism, unlike totalitarianism, does not rely on an all-encompassing ideological apparatus nor on ubiquitous terror, but instead on more ambiguous and flexible power dynamics that may flourish even within formally democratic institutions.
The volume’s analytical strength lies in its identification of the interwoven drivers of authoritarianism. These include structural crises (financial, ecological, and political) that create fertile ground for authoritarian rhetoric and policies; the resurgence of authoritarian ideologies crystalizing in threat narratives that exploit collective fears and suggest imminent societal collapse; identity-based polarization; the manipulative role of media and entertainment; gender dynamics and the politicization of gender roles; institutional erosion; and the interaction of global and national power asymmetries. This framework moves beyond monocausal explanations and instead accentuates the multifaceted nature of authoritarian resurgence in the early 21st century.
Of particular interest is Frankenberg’s and Heitmeyer’s argument in the introduction to the volume that contemporary authoritarianism has transformed its operational style. Rather than relying on overt coercion or ideological orthodoxy, modern authoritarian regimes utilize subtle instruments—especially digital and mass communication technologies—to manipulate public discourse and mobilize support. This transformation reveals that present-day authoritarianism can thrive within nominally democratic infrastructures, especially when leaders exploit crises and manipulate the performative aspects of political legitimacy.
A further unique and powerful contribution of the volume is its sustained attention to the urban-rural divide. Drawing on empirical cases from the United States, the United Kingdom, Hungary, Poland, France, and Germany, the editors illuminate how regional inequalities and perceptions of cultural displacement serve as flashpoints for authoritarian mobilization. These disparities cannot be attributed solely to economic inequality, as elaborated by the authors of Chapters 6 through 8 in Part III; they are also rooted in spatial identities and the dynamics of symbolic politics, as discussed by the authors of Chapters 9 through 11 in Part IV. Authoritarian actors effectively reframe such divides as cultural confrontations, invoking narratives of “authentic” rural identity versus urban “fake” multicultural identities sponsored by corrupt, cosmopolitan elites.
Central to the volume’s analysis is the discursive logic of authoritarianism—explored by the authors of Chapters 12 through 14 in Part V—which manifests recurrently across diverse national contexts. This logic juxtaposes “the real” people against “corrupt elites” and configures society in binary terms: the “moral majority” versus the subversive “other.” The contributors perceptively argue that such framings contribute to affective polarization and license authoritarian interventions. Particularly salient is their insight that the figure of the authoritarian leader frames themselves as representative of the people, rather than part of an elite class—thereby obscuring their own complicity in the reproduction of structural inequalities.
This insight might be augmented by reference to Olufemi Taiwo’s concept of elite capture, in his Elite Capture: How the Powerful Took Over Identity Politics (And Everything Else) wherein privileged actors exploit the institutional apparatus ostensibly designed to serve the public. Taiwo points to forms of privatization and deregulation—such as the extrajudicial systems of corporate arbitration—as instances of elite reconfiguration of legal authority. These processes, while legally sanctioned, may function to facilitate authoritarian policymaking under the guise of liberal governance. In this light, one could ask a compelling and underexplored question: Does the privatization of public goods—such as healthcare, education, and justice—represent not merely a neoliberal economic trend but a potential authoritarian shift in the locus and legitimacy of decision-making authority?
In Part VI, Chapter 15, authored by Professor Frankenberg and titled “Leviathan with a Beaked Mask,” is one of the most philosophically rich contributions in the volume. Here, Frankenberg interrogates how responses to crises—particularly public health emergencies such as the COVID-19 pandemic—have reconfigured the balance between law, authority, and individual freedom. He argues that law’s authority ordinarily rests on a reciprocal relationship between norm-givers and norm-followers. However, exceptional legislation enacted during crises may disrupt this relationship, converting legal subjects into mere objects of executive regulation. Of particular concern is the preventive logic of contemporary security law, which justifies expanded state powers without definite threats—shifting from concrete danger toward future risk management. Such developments, Frankenberg warns, carry intrinsically authoritarian features.
This chapter’s title evokes Hobbes’ Leviathan and aligns with Giorgio Agamben’s distinction between regular sovereign agents and those marked as exceptions—guards and doctors—in the biopolitical framing of state power. In this schema, the sovereign authority exercised through both police and medical institutions hints at the merging of biological and political governance. The challenge thus becomes articulating a defensible and democratic balance between public safety and civil liberties—not only in emergencies but more broadly amid a political grammar increasingly shaped by risk, fear, and preemptive regulation.
Drivers of Authoritarianism is not merely a survey of global democratic backsliding, but a scholarly intervention that invites critical interrogation of contemporary political developments. It serves as an essential resource for legal scholars, political theorists, sociologists, and concerned citizens alike. To understand—and above all, to resist—authoritarianism, one must approach it as this volume does: (self) critically, contextually, and with unwavering commitment to democratic ideals at home and globally.
Jul 10, 2025 Dalindyebo Shabalala
The first thing I read by Stephen R. Munzer was an article that he had done with Kal Raustiala, The Uneasy Case for Intellectual Property Rights in Traditional Knowledge, 27 Cardozo Arts & Ent. L.J. 37 (2009). There had been plenty of arguments made against providing protection for traditional knowledge (TK) and traditional cultural expressions, but that article provided a clear and challenging analysis for WHY providing protection was such a challenging theoretical problem, not just in the Global North but also in the Global South. In the most fascinating way, Munzer does this again in this article, once again providing a new and challenging reframing of the problem of resolving disputes relating to indigenous and traditional knowledge.
In reading this article Munzer does two things here that I especially appreciate. The first is that he brings the issue of disputes between indigenous communities and their member/citizens and disputes between one indigenous community and another up to the same level of analysis and concern as that of indigenous communities and non-member/non-citizens. I believe that due to the focus on current negotiations at the World Intellectual Property Organization (WIPO) on new instruments for protection of traditional knowledge and traditional cultural expressions the tendency has been to focus on misappropriation across borders by non-members/non-citizens, perhaps missing other avenues for enforcement.
Secondly, he re-emphasizes that the difference between indigenous and traditional knowledge (IK/TK) really matters because the nature of the disputes and how these disputes are resolved within nation states fundamentally differs between the two. In particular, the difference in political status affects the applicable law, the nature and scope of types of claims (control rights vs Income rights); standing as well as other civil procedural issues.
The details matter, however, and Munzer’s framework does much more. He provides a framework for doing strong comparative work on the ways that different national systems resolve IK/TK and traditional cultural expressions (TCE) disputes. This is crucial in helping us do explanatory work for why some systems provide better dispute resolution than others that goes beyond the more obvious political economy and legislative explanations. Munzer’s categories suggest that there are characteristics inherent in the nature of the disputes and the nature of the parties that may provide greater and more useful answers and lead to better explanations for outcomes in such disputes. I provide a basic outline of his framework below (P. 35):
| Preliminary Distinction | Control Rights (Autonomy Interest) | Income Rights (Distribution of Surplus) | | |
| Category 1: The nature of the TK at issue | Indigenous Knowledge | Traditional Cultural Expressions | | |
| Category 2: Dynamics between named participants | Indigenous Community vs. Non-Indigenous Third Party | Indigenous Community vs. One of its Members | Indigenous Community vs. Indigenous Community | Pleadings and Joinder: Impleader, Interpleader, etc. |
| Category 3: Indigenous Claimants | “On-Stage” (named in Cat. 1) | “Off-Stage” (not named in Cat. 1) | | |
| Category 4: Normative Systems within which Disputes are Settled | | | | |
His first component distinguishes between income rights and control rights, noting that many claims that can be categorized as control rights might more easily find purchase within municipal court systems in the Global North, compared to income rights. In particular, this may enable claims not specifically reliant on the existence of intellectual property-like protections.
His second component makes the very valuable distinction between IK/TK and TCE, noting that claims over TCEs, especially income right claims may find more purchase in statutory or common law courts in national systems.
The third component specifies the types of dynamics between individuals/entities who are involved in IK/TK disputes: Indigenous Community vs. Non-Indigenous Third Party; Indigenous Community vs. One of its Members; Indigenous Community vs. Indigenous Community; and the procedural relationships of joinder and pleading. His examination of this category does such a good job of pointing out how many IK/TCE disputes involve members of the indigenous community. There’s a great example, drawn from Miranda Forsyth’s work, of the dispute over the rights to make certain tattoos in Samoa between the traditional two-family group that had the right, and other citizens who claimed a right to do so and to innovate around tradition.
Munzer’s fourth component is named (on stage) vs. unnamed (off stage) interest holders/claimants. It combines with the third to highlight the ways that named participants can sometimes represent and other times act against the interests of unnamed or off-stage participants. Munzer’s insight in this component is that traditional principles of civil procedure related to joinder, pleading and applicable law can resolve some of these disputes even in statutory and common law courts. He notes that such disputes rarely stay within the traditional customary law of the group but usually involve appeals to national courts outside the jurisdiction of the indigenous group.
His final grouping addresses the normative frameworks in which disputes are addressed. This is going over territory covered in other places, but Munzer points out that litigation strategies play a large role in how these are combined in each jurisdiction. The successful resolution of disputed is in part defined by how normative frameworks in the other categories in the framework.
Overall in treating the normative framework for indigenous/traditional knowledge protection as only one of the determinative factors in the framework, Munzer does us a great service as comparative legal scholars. We have sought to find a complete explanation for differential outcomes in levels of protection in statute or treaty but the combination of normative frameworks in each country has not always provided that. Placing it in its proper context helps us see why there may be successful claims brought forward even in the absence of strong normative frameworks such as legislation. This lesson is crucial for the field.
For myself, I take some comfort from Munzer’s work that there is real utility in further exploring private law approaches to enforcing rights and claims to indigenous/traditional knowledge, and as with his earlier work, I suspect that this article will be a constant future touchstone and reference.
Jun 13, 2025 Shubha Ghosh
Professor Stavroulaki of Saint Louis University School of Law and a PhD graduate of the European University Institute has made an important contribution to the fields of health law, United States antitrust law, European competition law, and economic analysis of markets in this broad-reaching and potentially game-changing book. For the purposes of the International and Comparative Law JOTWELL section, her book is also a major work of comparative law, setting forth elegantly comparative features of US and European competition laws as applied to health care markets. The book as a whole and the last three chapters that take a deep dive into comparative law make Professor Stavroulaki’s work one I like a lot.
Framing this monograph is a critique of current approaches to competition law in the United States. Professor Stavroulaki starts from the traditional criticism of economic analyses of competition issues as focusing too much on the promotion of efficiency. Not only is efficiency gauged in stark quantitative terms, but it is also shaped in terms of consumer welfare, specifically the benefits to consumers from improved market competition. These benefits, under the current approach, are measured in terms of price reductions which allow for more consumers to be served with larger gains to individual purchasers. Professor Stavroulaki does not fully reject the consumer welfare approach, which has been the object of criticism by the Neo-Brandeisians (a criticism that underlay the alternate approach of the Federal Trade Commission under the Biden Administration). The Biden effort has been stopped by the new Administration, but it is not clear what has come into place. Professor Stavroulaki offers an approach that builds on the consumer welfare to consider the quality of what consumers receive in the marketplace in addition to the market’s ability to generate lower prices.
Quality is at the heart of Professor Stavroulaki’s analysis. That concept aids not only in disassembling the underpinnings of United States antitrust law, but also in highlighting the contrast between the United States and European approaches to competition law. With healthcare industries her focus, Professor Stavroulaki advocates for defining “quality in a way that reflects the notion that healthcare quality is a multidimensional concept consisting of the notions of effectiveness, safety, and acceptability” (P. 97). This wider definition “would incentivize the antitrust enforcers to create an analytical framework under which they would be able to balance the multiple components of healthcare quality against the harms caused to competition” (Id.) The Professor’s conception of quality to improve United States antitrust enforcement would harmonize it with the holistic approach of European competition authorities.
Put concisely, Professor Stavroulaki contrasts the market approach within United States competition law enforcement with the holistic approach within European competition law enforcement. The first emphasizes cost effectiveness and lowered prices; the latter takes into consideration questions of equity and access. Under the holistic approach, “competition authorities may extend the notion of consumer welfare in healthcare so that they can balance conflicts between the goals of competition and the non-economic facets of healthcare quality” (P. 185). An institutional split between the European Commission and European courts facilitates this holistic approach. The Commission initiates investigations of the factual basis for alleged competition law violations and makes legal determinations of anticompetitive behavior. The European courts review the Commission’s findings through appellate review. The courts also provide a forum for limited private disputes. As Professor Stavroulaki observes, the Commission takes an economic approach in its work while the courts take a pluralistic approach. The two institutions together make the holistic approach viable. Operating against the institutional backdrop of the Commission and the courts is the role of national and European legislation, what Professor Stavroulaki labels the regulatory approach. Competition legislation is more prominent in Europe than in the United States. For example, the Competition and Markets Authority in the United Kingdom established regulations for mergers and acquisitions. Professor Stavroulaki recommends that such regulations as they apply to the healthcare industry should transparently and effectively take into consideration the objectives of healthcare policy in guiding the industry to provide quality and accessible healthcare.
Professor Stavroulaki offers an approach to competition policy in the health care industry that builds on traditional antitrust principles from the United States and lessons from Europe. She emphasizes that the market-based approach to price competition is consistent with the promotion of quality. It is also valuable for transparency and correcting political or other biases in competition law enforcement. But the market-based approach is incomplete. The approach needs to be broadened to include the perspectives of other actors in healthcare in addition to patients, such as medical professionals and health care policies. The holistic and regulatory approaches serve to complement and expand the market-based approach. While offering flexibility and coordination between competition and healthcare policies, the holistic and regulatory approaches can be complex which can work against transparency. But these two approaches expand the ambit of competition law beyond narrow economic considerations to recognize the ways in which the market shapes the provision of health care.
Professor Stavroulaki’s analytical framework to assess antitrust issues in the healthcare industry is dense and rigorous. Its relevance is emphasized by her application at the end of the volume on issues related to the current issue of data privacy in health care mergers. The two examples presented are the Google/Fitbit merger, cleared by the European Commission in 2020, and the United Healthcare/Clear Care merger, challenged unsuccessfully by the United States Department of Justice in 2022. In each case, a critical issue was the potential anticompetitive effects of access to patient data. Also in each case, the reviewing body considered issues of data privacy in addition to the market effects of the merger. The approaches were holistic and guided by relevant legislation, as appropriate under the regulatory approach. Even if the mergers were approved partly on the grounds that data privacy would be protected by governing legislation, the analytical frameworks used in the two cases illustrate the approach Stavroulaki advocates. Against the politics of large tech mergers and hospital mergers, Professor Stavroulaki’s approach is analytically rich and outcome neutral. Whether it might ultimately be no different from a pure market analysis in terms of result is a point of debate. But it is hard to question Professor Stavroulaki’s contributions to the debate.
This monograph is worthy of several close reads. It contributes not only to the field of competition law but also through several chapters uses comparative analysis to construct a more comprehensive approach to the intersection of health law and competition law, offering a contrast between the United States and Europe. Scholars and students of these varied and overlapping fields should take note of this work. Within its pages is an invaluable method for comparative competition and health law. Professor Stavroulaki has laid a profound foundation for future work. The fruitfulness of her approach is illustrated by her forthcoming article in Northwestern Law Review on health care deserts in the United States, another piece of scholarship worth reading. This book is not only about quality, but also an exemplar of scholarship we like lots.
May 20, 2025 Verity Winship
Luca Enriques, Matteo Gatti & Roy Shapira,
How the EU Sustainability Due Diligence Directive Could Reshape Corporate America, available at
SSRN. (April 27, 2025).
Corporate America may face an unusual pairing in the fight over corporate responsibility for human rights and the environment: EU rules and US enforcement. The potential for this (unintentional) partnership is the subject of How the EU Sustainability Due Diligence Directive Could Reshape Corporate America. The article considers how the EU Directive on Corporate Sustainability Due Diligence (CS3D) will affect US companies, focusing on a “unique combination of the EU ambitious regulation and the US robust private enforcement landscape” (P.1).
The EU directive has a sweeping geographic reach, extending beyond EU boundaries. It requires “every large corporation operating in the EU market” to “conduct due diligence on how its operations affect human rights and the environment” (P. 8). US companies with significant EU revenue are pulled in. The directive’s influence also cascades down to smaller companies as these large multinationals must monitor their “activity chain” worldwide (P. 10).
The sustainability directive does not impose liability on corporate directors. In fact, Member States rejected a proposal that included such liability (P. 12). This is where US litigation comes in. The authors explore how the European mandate interacts with corporate director liability in the US.
Two developments in US corporate law make the authors optimistic about the pressure that potential fiduciary-duty litigation may exert on companies. First is the post-2019 change to Delaware corporate law that strengthens directors’ legal obligations to oversee the company, design reasonable compliance systems, and catch and act on red flags (“Caremark duties”). These duties, combined with increased access to corporate information through pre-filing “books and records” requests, are revitalizing litigation over directors’ oversight responsibilities.
As the authors acknowledge, liability imposed through court judgments remains unlikely. Reputation, settlement amounts, and shifts in attorney advice and compliance norms are more probable mechanisms of pressure.
In addition to legal developments in corporate law and about sustainability, the article engages with the concept of the “Brussels effect,” which describes the EU’s indirect regulatory influence beyond its borders through market mechanisms. (See Jotwell review of Anu Bradford’s work.) The authors note that this instance differs from the classic description because it involves direct regulation by the EU (P.6), helpfully testing the concept’s boundaries.
In a global context of fast and unpredictable shifts, reading this article can sometimes feel like receiving a letter from a past world or a distant land. Take, for example, the article’s calm contemplation of the potential to “catapult human rights and environmental issues to the top of [US] corporate boards’ agendas” (P. 5). Occasional otherworldliness does not, however, detract overall.
In part, the article is particularly timely because of its implications for questions about conflicting requirements and the role of litigation. It provides a concrete example of conflicting mandates faced by multinational corporations, a problem that becomes acute when the corporation is told both that it must do X and that it must not do X. How should a company comply if paying attention to sustainability is both mandatory and prohibited? Navigating such conflicts may very well depend on the type of discussion here: understanding, for instance, what sustainability “due diligence” specifically entails.
The centrality of litigation brought by private parties is also a timely focus. It is possible to be a skeptic about fiduciary duty litigation as an effective tool, even with expanded Caremark duties. Nonetheless, the article prompts even these skeptics to think about the enforcement role of private litigants and litigation, a role that has become particularly salient as some of the traditional government actors are constrained.
In sum, How the EU Sustainability Due Diligence Directive Could Reshape Corporate America offers concrete and thoughtful analysis, contributes to multiple literatures, and raises questions about conflicting requirements and the role of litigation that are at the heart of this dynamic moment.
Cite as: Verity Winship,
European Rules, American Enforcement, JOTWELL
(May 20, 2025) (reviewing Luca Enriques, Matteo Gatti & Roy Shapira,
How the EU Sustainability Due Diligence Directive Could Reshape Corporate America, available at SSRN. (April 27, 2025)),
https://intl.jotwell.com/european-rules-american-enforcement/.
Apr 11, 2025 Katharine Young
It is surely an understatement to observe that global constitutionalism and human rights are under considerable pressure. Central to many of the up-to-the-minute (post-January 2025) challenges, is the age-old question of the role of the apex or supranational court in rights protection. Research into how courts and tribunals react, and should react, to the ever-expanding list of human rights concerns that reach them, is vital, whether one’s concern is human rights inflation, juristocracy, rising authoritarianism, or all three. The default position of judicial restraint and its corollary, deference, often lacks nuance.
Cora Chan’s new book, Deference in Human Rights Adjudication, offers a tightly reasoned and extensive engagement with the premise of deference. Drawing on her home jurisdiction, Hong Kong, Cora Chan also engages cases and commentary from Canada, Ireland, Israel, New Zealand and the United Kingdom. With careful analysis of several lines of caselaw, more analytical than strictly comparative, she presents a grid of guidance notes on the various postures that courts have adopted, in dealing with deference and human rights. The findings are telling, not just for the jurisdictions in question, but for the international and regional human rights tribunals now faced with questions of their own appropriate role, and for other courts supervising the extensive bills of rights and expressly justiciable complaints that have come with the last wave of constitution making and amendment.
For institutionally minded scholars, the challenge is to find the sweet spot between, on the one hand, judicial abdication, where excessive deference means that human rights, although notionally enforceable, become sham, and on the other, judicial usurpation, where the refusal of deference can turn courts into juristocratic governors, without accountability or proper competence. This sweet spot becomes all the more complicated when the complaints raised in human rights adjudication apply to such distinctive issues as challenges to police treatment, cuts in social benefits, hostility to sexual minorities, disavowal of gender equality claims, and concerns in electoral integrity, all under the header of “national human rights complaints.” In addition, we must add newer concerns that cut against prior ideas of “negative” and “positive” rights or obligations, including increasingly litigated economic and social rights, and even existential questions such as climate change or artificial intelligence, all leveraging (justiciable) human rights claims.
There is, of course, an extensive literature on the separation of powers and new models of rights. Professor Chan engages widely with it in order to devise a spectrum of judicial models, that range loosely on an axis of judicial formalism, from what she calls algorithmic (the most formalist), to stable, elastic and finally amorphic (the least formalist) judicial models. These models are drawn from an array of devices which includes lowering the standard of review, lowering the standard of proof, reversing the burden of proof, or granting a deferential remedy. The depiction of these four models can be read as expanding from previous typologies of strong versus weak judicial review, or the interbranch and extrabranch interactions of dialogic, experimental or catalytic review.
One particularly notable focus of the book is how courts are now dealing with question of evidence and the burden of proof in human rights adjudication. This question raises concerns about judicial deference, particularly given new trends in empowered executives, reconfigured public servants, and the broader issues of epistemic polarization, and its anti-science, anti-fact, populist undertones. One might be concerned that this vital issue becomes too flattened in a typology of judicial models, and that for instance an algorithm on proof might cut differently from an algorithm on remedy, particularly under polycentric or politically unpopular standpoints. Yet it is an important issue to draw out and Professor Chan gives it careful treatment.
Another is the irony that deference has grown just as another “global” model for human rights adjudication has increased: the use of proportionality analysis. Again, a huge and important literature canvases the use of proportionality reasoning, as a structured inquiry that has travelled across civil law and common law divides. The irony is, as Professor Chan notes, that deference may inspire or rationalize restraint, while proportionality analysis does something else altogether, allowing judges to inquire closely into very modes of reasoning used by the executive and legislative branches, seeking to ensure that decisions are made as necessary but also in the manner “least restrictive” to human rights. As my own work on the positive obligations raised by human rights suggests (admittedly in different judicial contexts, such as the South African Constitutional Court and the Committee on Economic, Social and Cultural Rights), less structured doctrines like reasonableness can avoid the forced and sometimes extreme choice between strict deference (or use of parallel doctrines, such as the margin of appreciation) and proportionality analysis, but introduce additional issues.
Professor Chan’s book takes as a given the background challenge of the separation of powers, and the fact that the utopianism of human rights and the possibility of their adjudication presents a constant threat of undermining or overthrowing this settlement. Her committed analysis of the “doctrinal superstructure of public law” (P. 8), as she puts it, delves deeply into justifications and instantiations of deference. Our inherited models, from Montesquieu to Madison and beyond, have been considerably updated by comparative insight, particularly from “Global South” courts and institutions, and from jurisdictions in which collaboration between the branches seems both tenable and attractive, or in which “fourth branch” institutions play distinctive roles for human rights. I would point to the other “superstructures,” beyond doctrine (especially the old-fashioned economic one), that inevitably warrant inclusion. In this context, deference, even of variegated intensity, seems a limited tool. But to such developments, the engagement with frameworks from a number of jurisdictions, a number of courts, and a number of human rights concerns, greatly informs our understanding. This book justifies a close reading.
Mar 11, 2025 Mathilde Cohen
Do you teach comparative law? If so, rejoice—your job just got a lot easier and more engaging with the publication of Comparative Law: Introduction to a Critical Practice by Fernanda Nicola and Günter Frankenberg. And if you don’t teach it, here’s a perfect excuse to dive into comparative legal studies: this textbook covers a broad range of topics, from property and administrative law to contracts, torts, and family law.
What sets it apart is its bold, critical approach to traditional comparative methodologies. It doesn’t just compare legal systems; it challenges the very assumptions, biases, and power structures embedded in legal comparison. The volume critiques comparative law as a discipline while also celebrating its richness, presenting its histories, internal debates, and evolution through a multi-disciplinary lens that draws on anthropology, feminist theory, political science, postcolonial theory, and sociology.
This book serves as both an accessible introduction for newcomers and a stimulating challenge for seasoned comparatists. The introduction provides a historical overview of comparative law’s development, while questioning the belief that the practice can be neutral or objective. Nicola and Frankenberg argue that the selection of what to compare—and how—is shaped by the scholar’s values and perspectives. They urge readers to critically examine the epistemological foundations of comparative law, pointing out issues like Eurocentrism, the dominance of certain legal traditions (e.g., common law or civil law), and the marginalization of non-“Western” legal systems. Throughout, they emphasize that legal frameworks are shaped by political, social, and economic contexts, positioning comparative law as a tool for social critique and a means of questioning entrenched legal norms.
Each chapter focuses on a key legal issue—such as breach of contract, wrongful life claims, or same-sex marriage—framed by guiding questions that stimulate reflection. For example, the constitutional law chapter includes thought-provoking prompts such as, “Read the constitution of your country! For which audiences and purposes do you think it was written?” or “Compare court rulings on Muslim veiling. How do courts translate veiling conflicts into a collision of rights?” The structure of each chapter follows a three-part framework (or “turns”): first, a presentation of mainstream comparative law approaches (from functionalism to legal transplants); second, a critical examination of these approaches, focusing on ideology, culture, and history; and third, practical insights that explore legal comparison through a political spectrum, non-legal layers, and legal transfers across time and space.
A standout feature of the book is its emphasis on the “critical” in critical comparative law. Nicola and Frankenberg invite readers to ask not just how legal systems differ, but why certain legal forms are privileged over others. This inquiry extends beyond global comparisons to include internal dynamics within legal systems, such as gender, race, caste, and class. For example, the book explores how comparative law has historically been used to reinforce colonialism and patriarchy, with family law long considered an “exception to the field” due to its deep cultural roots and association with intimacy. Yet, as the authors argue, critical approaches reveal significant historical injustices, particularly when they uncover how family law “intertwines with economic policy.”
Despite addressing complex theoretical issues, Nicola and Frankenberg make their arguments accessible, grounding abstract ideas with case studies and real-world examples. Another major strength is the book’s inclusivity. While it engages deeply with “Western” legal traditions, it also incorporates legal systems from outside the conventional comparative legal canon, including those of Mexico, Haiti, Guatemala, Taiwan, and Tanzania, among others. These examples enrich the discussion, such as using the Tanzanian Constitution to problematize the concept of constituent power or analyzing the adoption of gun rights reforms in Latin and Central America. In sum, Comparative Law: Introduction to a Critical Practice is a groundbreaking textbook that redefines the role and scope of comparative law. By combining rigorous scholarship with a critical perspective, Nicola and Frankenberg encourage readers to consider not just how laws differ, but why those differences matter in practice. It’s an essential read for anyone seeking to understand the complexities of comparative law in the modern world.
Feb 14, 2025 Sam F. Halabi
In the wake of President Trump’s shocking announcement that he favors the U.S. “take over the Gaza Strip and…own it” and hopes to resettle the Gazan Palestinian population elsewhere, not only the global diplomatic community but also scholars of the region have been given a renewed focus on how the topic of Gaza and its people will be understood, analyzed, and treated. It is fortunate then that Ilan Pappe, long one of the most important scholars of the Israel/Palestine conflict, has provided an essential resource on the expanding discipline of Palestine Studies. Writing in the UCLA Law Review—the campus was one of the most important venues for activism related to Gaza over the course of 2023-24—Pappe not only traces the origin of Palestine Studies as it emerged through academic journals like the Journal of Palestine Studies and the Jerusalem Quarterly, but also how programs and academic chairs are now proliferating in Canada, the UK, the US and elsewhere.
Pappe’s article, Palestine Studies: An Activist Academic Field, is one I like a lot and I hope others seeking greater understanding of Palestine and Palestinian people do as well. Pappe’s story itself is fascinating—he was born in Haifa, educated at the Hebrew University, and served in the IDF before attending the University of Oxford where, like other prominent Middle Eastern historians who studied alongside Albert Hourani, he developed an approach to research that emphasized a comprehensive approach to primary and secondary sources. He eventually became a so-called “New Historian”—one of a number of Israeli academics who, working from records then newly-released from Israel’s state archives, challenged conventional narratives about the origin of the state and have argued that Israel was established through violent and orchestrated mass expulsion of Palestinians. Pappe himself writes from Exeter in a kind of self-exile, departing from the University of Haifa after advocating the boycott of Israeli cultural institutions.
In Part I of the article, Pappe traces the origins of Palestine Studies from the work of dedicated Palestinian historians first in Beirut at the Palestine Research Centre and later in Washington, D.C. at the Institute for Palestine Studies. After prominent Palestinian Professor Edward Said’s publication of Orientalism in 1978, Palestine Studies, according to Pappe, became interwoven with a wider set of interpretive and methodological movements that emphasized the examination of history, language, and culture from the perspective of the colonized, the dispossessed, and the marginal. Curricular innovations followed.
At the same time, in universities throughout the West and South America, courses focusing on Palestine have enriched the curricula of area studies, politics, and international relations. In the past, Palestine-focused modules were located in Conflict Studies or at best appeared in Middle Eastern Studies departments; at worst they were limited to Jewish and Israel Studies departments. With the emergence of dedicated institutions, programs, and courses across the globe, Palestine has become integral to scholarly discussions about decolonization, Indigenous Studies, international law, and Genocide Studies. (P. 1282.)
In Part II, Pappe turns his attention to the “Present State of the Art.” In addition to providing a succinct account of the juxtaposition of Palestine Studies with other intersectional advances in research and pedagogy, Pappe points to 2010 to 2020 as the critical decade in which Palestine Studies advanced worldwide.
He explores the interrelationships between specific disciplines and Palestine Studies: International law has been shaped by the strenuous efforts undertaken by primarily Western governments to apologize, justify, and excuse the frequent violations of international law committed against Palestinians. The role of women during episodes of Palestinian diplomacy, resistance, and advocacy has also informed Gender and Women’s Studies’ research, teaching, and curricular design. Palestine Studies, in turn, has benefited from its expanded dialogue with other disciplines. As Pappe concludes, “Palestine Studies will continue to benefit from the theoretical nuances, comparative case studies, and strategies of resistance offered by Indigenous Studies, literature, social psychology, economics, international law, transnationalism, Settler Colonial Studies, and Cultural Studies.”
Pappe also highlights the distinction Palestine Studies suffers—that it is uniquely targeted for its content, its speakers, and its factual and historical basis. Palestine and Palestinians “remain the only focus of inquiry consistently undermined by governments and media in the West, as well as by mainstream academia” he writes. (P. 1281.) Pappe anticipates that like analogous but more forgiven movements and historical episodes, Palestine Studies will emerge from these antagonistic efforts as an essential, ever-expanded discipline.
In Part III, Pappe meditates about the future, about the need for a closer alignment between scholarship advanced by Palestine Studies and the actual, objective reality of Palestinians and Palestine on the ground. Since October 2023, Pappe argues, there has been a more intense campaign to silence scholars of Palestine Studies and to negatively depict its researchers, study subjects, and conclusions. But in this sense, as his eponymous title suggests, the discipline itself has always been and must necessarily be activist. As the aggressive and contradictory orders issue from the White House affecting more and more territories and more and more vulnerable populations, Palestine Studies will become, Pappe argues, an essential field for “confronting dehumanization and racism, connecting people and their struggles, and building a future in which knowledge serves the aims of justice and liberation.” (P. 1291.)
