Contributions to Books

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  Introduction: The Pasts and Futures of Between Facts and Norms – A Critical Exchange

  John Abromeit, Matthew Dimick, and Paul Linden-Retek

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  101: Publicity Rights and Celebrity

  Mark Bartholomew

  Publicity rights protect the commercial value of one’s persona from unauthorized appropriations. By broadly construing the scope of one’s persona, removing restraints on the right’s alienability, and extending the right’s availability past death, courts and legislators expanded the ability of the famous, including famous authors, to control outside uses of their public image. Legal academics often question the theoretical grounding of publicity rights, but there is little doubt that such rights influence the construction of meaning in the minds of audiences. (Published as a chapter in the Elgar Concise Encyclopedia of Law and Literature)

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  Crime Fiction

  Guyora Binder

  Published as Chapter 35 in Elgar Concise Encyclopedia of Law and Literature, Robert Spoo, Leonard L. Milberg & Simon Stern, eds.

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  How the Legal Form Distorts Public and Private Autonomy

  Matthew Dimick

  Published as Chapter 5 in Critical Encounters with Habermas's Political and Legal Theory, John Abromeit, Matthew Dimick & Paul Linden-Retek, eds. (Brill 2025).

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  Inframarginalism and the Distributive Corollary of the Coase Theorem

  Matthew Dimick

  The double-distortion argument holds that income taxation is more efficient than redistribution through changes in legal rules because a change in a legal rule distorts both the market to which the rule applies and, by altering incomes of market participants, the labor market as well. The argument succeeds only if it is possible to achieve the same distributive outcomes with the income tax as with changes to legal rules. This is not the case, however, because tax authorities cannot obtain information regarding the extent of the surplus available for redistribution without altering legal rules in individual markets and observing whether the effect is inframarginal (in which case there is surplus available for redistribution) or marginal (in which case there is not). This point is illustrated using the Ayres and Talley model of Coasean bargaining with divided entitlements.

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  Introduction

  Jorge Luis Fabra-Zamora

  This unique volume brings together leading academics and researchers from different legal traditions to discuss the work and impact of Hans Kelsen, the most influential legal philosopher with global reach. Using his Pure Theory of Law and his theory of democracy as a lingua franca, the book allows for dialogues between jurisdictions and legal traditions and serves as a point of departure for further research on several themes such as state, international, and non-state law.

  The volume covers four themes. The first part focuses on Kelsen's often overlooked assumptions and the resultant conception of law. The second section refers in particular to Kelsen's understanding of legal norms and some of its most salient elements and features such as sanction and validity. The third part explores a variety of questions concerning Kelsen's views on international and non-state law in general and their implications in some jurisdictions. The final section brings Kelsen's legal and political theory together by assessing its relevance to democracy.

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  Democratic Backsliding in Federal States

  James A. Gardner

  This book revitalizes the discourse on backsliding democracy and the global rise of autocracy, extending the consequences of their changes to a sustainable future. In three sections, the book systematically examines diverse pathways leading autocracies to rise and spread worldwide and debates the future consequences. Using a multidisciplinary approach, the book conceptualizes the rise of autocracy and the backsliding of democracy by studying dictatorship, authoritarianization processes, autocracy’s diffusion, and populism. It reveals the global spread of autocracy and reflects on the challenges this poses to, and the likely impacts on, a sustainable future. This book is of key interest to scholars and students of autocracy/autocratization, democracy and democratization, political sociology, sustainability, and more broadly to international relations and comparative politics.

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  Multilateral Rules and the Legality of Regional Integration

  Meredith Kolsky Lewis

  Published as Chapter 21 in The International Law of Economic Integration, Julien Chaisse & Christoph Herrmann, eds. (Oxford University Press 2025).

  This chapter discusses the multilateral rules that are relevant to regional integration. In particular, it documents the General Agreement on Tariffs and Trade (GATT) and World Trade Organization (WTO) provisions that relate to free trade agreements (FTAs) under the GATT and General Agreement on Trade in Services, customs unions, and preferential trade agreements, referred to as ‘FTAs’ where discussed collectively. The chapter highlights not only the rules themselves but also ways in which the rules are inadequate or do not function as the drafters intended. In addition, the chapter addresses a number of WTO panel and Appellate Body decisions that clarify aspects of the legal interplay between FTAs and the multilateral rules. Throughout, the chapter offers commentary on the efficacy of the applicable rules and identifies areas in which the rules require further clarification.

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  "Safe Third Country": Democratic Responsibility and the Ends of International Human Rights

  Paul Linden-Retek

  Published as Chapter 3 in Lawless Zones, Rightless Subjects: Migration, Asylum, and Shifting Borders, Seyla Benhabib & Ayelet Shachar, eds.

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  The Minimum Wage

  Matthew Dimick

  Published as Chapter 24 in The Oxford Handbook of the Law of Work, Guy Davidov, Gillian Lester & Brian Langille, eds. (Oxford University Press 2024).

  The minimum wage remains a popular but controversial policy instrument. This chapter addresses two issues in the minimum wage debate. The first is about the value of the minimum wage. What should the minimum wage be for: does it enhance the efficiency of the labour market, redistribute income (at some cost to efficiency), or protect other social goods such as respect and dignity at work? This first issue also asks how efficacious the minimum wage is at achieving income redistribution, especially in light of alternatives such as income tax. The second issue examines the minimum wage in the larger environment for regulating employment standards. Strong unions, which set minimum wage standards through collective bargaining rather than legislation, fear that statutory minimum wages undermine union power. This attitude questions the wisdom of legislated minimum wages, which may have the unintended effect of making it harder for weak unions to rebuild themselves.

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  Election Law and Democratic Theory

  James A. Gardner

  Election law is the body of law by which a society implements its commitment to democracy. Any meaningful evaluation of the suitability or effectiveness of a society’s election law therefore requires some inquiry into the nature of the society’s democratic commitments—the theory or conception of democracy to which it subscribes. Virtually all such theories are rooted in philosophical liberalism but nevertheless come in many varieties. Reconstructing a society’s democratic commitments can be complicated by its failure to articulate or even to reflect upon them. In the United States, that difficulty is compounded by a long history of evolution in American conceptions of democracy, as well as by the presence of a long-standing, competing strand of illiberal and antidemocratic thought, culminating in the sudden, recent turn to right-wing populism. This populism claims to be motivated by a democratic wish to serve the interests of the people, but its conception of the people is narrow and exclusive, and its conception of elections is decidedly illiberal and undemocratic. The kind of populism now associated with the Republican Party is thus not a plausible alternative to the inherited conceptions of liberal democracy to which the U.S. Constitution is demonstrably committed.

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  Transnational Private Environmental Regulation: Are States Striking Back?

  Errol E. Meidinger

  To be published in Research Handbook on Environmental Regulation, David Williamson, Gary Lynch-Wood & Agne Prochorskaite, eds.

  Rapid global trade expansion beginning in the 1990s spawned a parallel expansion in non-state (‘private’) environmental regulatory (PER) programs. They issue regulatory standards, monitor and judge performance, sanction poor performance, and sometimes regulate state activities. PER programs constitute extensive and complex transnational governance agglomerations encompassing environmental certification, corporate social responsibility, and environment-society-governance programs, typically intertwined with governmental and intergovernmental regulatory programs.

  Using forestry and climate change examples, this article analyzes key features of PER programs, how they may be growing empirically more binding despite their formally voluntary status, and their changing relationships with governments. It finds that PER’s pull on behavior appears to be growing but is subject to new political headwinds. The EU is moving to conscript PER to its ambitious regulatory purposes while the US remains ambivalent, and China manages it in a controlled way. Most other countries either passively accept or affirmatively deploy PER programs for their policy goals.

  [Note: This paper is under preparation for the forthcoming Research Handbook on Environmental Regulation, edited by David Williamson, Gary Lynch-Wood and Agne Prochorskaite. Length constraints and citation format, along with the expansive topic, preclude citing a full complement of the excellent literature available on this subject. This article is a foundational step for ongoing work on the implications of rising authoritarianism and populism for transnational private environmental regulation.]

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  A Problem of Utopia: Human Rights and Transitional Justice

  Makau wa Mutua

  Published in The Oxford Handbook of Transitional Justice, Jens Meierhenrich & Alexander Lahan Hinton, eds.

  This chapter discusses the interrelation between human rights and transitional justice. It starts by highlighting that human rights are deeply political even though advocates sought to distance it from politics due to its birth in the vortex of the cold war. Moreover, human rights are inextricably and inherently tied with the larger project of Western political democracy and the free market norms that underline liberalism. The idea and practice of transitional justice became a religion within the human rights community, which is decidedly interventionist. The chapter explains how human rights and transitional justice are presented as a doctrine of emancipation.

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  Machine Learning and Artificial Intelligence in Counterterrorism: The "Realities" of Security Practitioners and Technologists

  David A. Westbrook and Mark Maguire

  Published as Chapter 8 in States of Surveillance: Ethnographies of New Technologies in Policing and Justice, Maya Avis, Daniel Marciniak & Maria Sapignoli, eds.

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  Enforcement: A Survey of the Approaches taken to Insurance Regulatory Enforcement in the United States of America and in the United Kingdom

  Aviva Abramovsky, Dan D. Kohane, Farhaz Khan KC, and Paul Bonner Hughes

  Published as Chapter 16 in Research Handbook on International Insurance Law & Regulation, Julian Burling & Kevin Lazarus, eds.

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  Charles B. Sears Law Library, University at Buffalo School of Law

  Elizabeth G. Adelman and Evviva Weinraub Lajoie

  Published in Organizational Structures of Academic Law Libraries: Past, Present, and Future, Elizabeth Adelman & Jessica de Perio Wittman, eds.

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  The Microbial Zoo: How Small is Wild?

  Irus Braverman

  Published as Chapter 11 in Wilder Kingdom: Rethinking the Wild in Zoos, Wildlife Parks, and Beyond, Ben Minteer & Harry W. Greene, eds.

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  A Hartian Theory of Officials

  Jorge Luis Fabra-Zamora

  Published in Legal Competence: Concept, Norms, Formalization, and Exercise, Gonzalo Villa-Rosas & Torben Spaak, eds.

  HLA Hart did not provide a thorough account of legal officials, even though such a notion is one of the central elements of his theory of legal systems. As critics have rightly argued, three related questions remain unanswered: “What is an official?” (the Conceptual Problem); “Who are the officials of a given legal system?” (the Identification Problem); and “How are these officials empowered by the system’s secondary rules?” (the Empowerment Problem). These issues have generated suggestions for eliminating legal officials from theoretical inquiries, leading to a larger question: “What role do officials play in legal theory?” (the Explanatory Role Problem). This chapter articulates an account of legal officials that supplements and substantially revises Hart’s original formulation in response to these issues. My renewed account reinterprets the central insights of Hart’s theory of legal systems as a general theory of practice-based normativity. With this account at hand, responses to each problem are advanced. To address the Conceptual Problem, I argue that officials are agents who make peremptory decisions (enactments and settlements) on behalf of a given community, while legal officials are agents who make such decisions on behalf of political communities. In response to the Identity Problem, I hold that the identification of officials demands the recognition of two kinds of agents: order-constituted officials created by the system’s valid norms identified by the rule of recognition and identified through a doctrinal analysis; and order-constitutive officials created by the system’s secondary rules and identified through a quasi-sociological inquiry. A detailed clarification of the power-conferring character of social rules is developed in response to the Empowerment Problem. Finally, in response to the Explanatory Role Problem, I clarify the relevance of officials both for jurisprudence and for social philosophy.

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  Strongmen and Neurotics: Visible Struggle and the Construction of Judicial Ethos

  James A. Gardner

  Published as Chapter 10 in The Rhetoric of Judging Well: The Conflicted Legacy of Justice Anthony M. Kennedy, David A. Frank & Francis J. Mootz III, eds.

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  Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law

  Paul Linden-Retek

  Published as Chapter 13 in Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law, Jan Komárek, ed.

  This chapter critiques Jürgen Habermas’s concept of constitutional patriotism—and its basis in his discourse theory of democracy and law—from the analytic perspective of ‘constitutional imaginaries’, and details the consequences of this critique for the constitutional discourse of the contemporary European judiciary. In the first instance, analysis of constitutional imaginaries reveals the extent to which civic attachment to constitutional law is oriented not merely to legal principles simpliciter but also to the historical settlement of political conflict those principles reflect. This suggests that the plurality of constitutional imaginaries in the European legal space poses additional difficulties for inspiring civic attachments post-nationally. Second, understanding Habermas’s work in this light opens new avenues for rethinking the interpretive and structural tasks to which Europe’s juridical institutions should be directed. In particular, the chapter proposes more responsive forms of proceduralism able to sustain the reflexivity of constitutional imagination that post-national politics requires.

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  Illiberalism, Human Rights, and Rule of Law: A Kenyan Paradox

  Makau wa Mutua

  Published as Chapter 25 in The Palgrave Handbook of Contemporary Kenya, Wanjala S. Nasong'o, Maurice N. Amutabi & Toyin Falola, eds.

  Hypocrisy is the homage that vice pays to virtue (La Rochefoucauld, 2009). While this appears to be the vox populi of Kenyans—elites and the hoi polloi alike—it is a paradox of the country’s politics. On the one hand, the masses of the people seem to cry out for a democratic state. But on the other hand, they seem to be possessed by a culture of cynicism and incipient fascism (see Cheeseman et al., 2020). The elites swear by the values of liberalism but practice the exact opposite. It is not even the imperfection of the idea. Rather, it is the complete repudiation of those ideals in virtually all facets of national life. The country has been gripped by an orgy of self-cannibalization in which people say one thing but do another. The country’s zeitgeist is a despair of contradictions, most of them debilitating to national interests. What is left is a ruinous landscape on which only evil seems to germinate. How to reconcile the seemingly genuine desire—and often hard-fought struggles—for a progressive, left-of-center, liberal democratic state with deep-seated illiberalism speaks volumes about the apparent inability of the Kenyan post-colonial state to cohere a national character and ethos of democracy (Mutua, 2008). Vertically and horizontally, human rights and the rule of law are on every lip, yet they are observed more in their breach than the observance. As elsewhere, a gene of illiberalism lurks everywhere (Zakaria, 1997: 22).

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  Guide to Bill of Attainder Clauses in Article I, sections 9 and 10

  Matthew J. Steilen

  These are commentaries on the Bill of Attainder Clauses in Article I, sections 9 and 10. Each is 2000 words long. They are forthcoming in the 3d edition of Heritage Guide to the Constitution. Topics covered include the history of English bills of attainder, the meaning of "bill," "notorious," "attainder," and other key terms, bills of attainder passed against loyalists during the American revolution, the Josiah Philips case, the legislative history of the clauses in the Philadelphia Convention, early Supreme Court decisions involving bills of attainder, and the modern doctrine. Inline citations and a short bibliography are included. The author has written several earlier studies of English and American bills of attainder.

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  Tigray and the (Un)Conditional Right to Self-determination, including the Right to Secession: Constitutional and International Law Perspective

  Mihreteab Tsighe Taye

  Published as Chapter 15 in Constitutional Law and Politics of Secession, Antoni Abat i Ninet, ed.

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  Academic Brands and Cognitive Dissonance

  Mark Bartholomew

  Published as Chapter 7 in Academic Brands: Distinction in Global Higher Education (Mario Biagioli & Madhavi Sunder, eds., Cambridge University Press, 2022).

  It is hard to reconcile the research university’s supposed reason for being – the reasoned pursuit of knowledge – with its methods for building brand awareness and equity. Just like pitches for other luxury goods, the selling of higher education depends on irrational appeals devoid of information and marketing missives meant to hug the line between legally protected puffery and outright fraud. Although universities have always borrowed from the selling strategies of the commercial sphere, in recent years, there has been a sea change in the prevalence and degree of less-than-truthful content in higher educational self-promotion. How do university constituents – administrators, professors, students – interpret this gap between their institutions’ traditionally understood role and the logic of today’s academic branding strategies? The chapter chronicles the main rationalizations these actors deploy to reduce the tension between academic mission and academic marketing. By telling themselves that their school’s advertising efforts can be quarantined from the university’s larger purpose or actually provide tangible and truthful information to outside audiences or are a necessary evil, university constituents reduce their internal dissonance but fail to confront the realities of academic branding.

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  Amphibious Legal Geographies: Toward Land–Sea Regimes

  Irus Braverman

  Published as ine introduction to Laws of the Sea: Interdisciplinary Currents, Irus Braverman, ed.

  This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book discusses the juridical thinking that has enshrined the land/sea divide into contemporary governmental infrastructures, disciplinary traditions, and regulatory apparatuses, and charts the disastrous implications that such a legal fixation on the land/sea binary has wrought on human and other-than-human lifeworlds. As the collection proceeds, a second broad theme emerges, building on the first: when one rethinks the abstraction of law as played out on the ground, the “ground” itself shifts and fundamental divisions between land and sea that serve as the foundations of Western law are undermined. “A first step in this process,” as John Gillis states in his archeological challenge to the Garden of Eden myth, “is to recognize that land and water are opposites but inseparable parts of an ecological continuum”.