Contributions to Books

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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.

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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”.

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  Citizen Scientists and Conservation in the Anthropocene: From Monitoring to Making Coral

  Irus Braverman

  Published as Chapter 7 in The Nature of Data: Infrastructures, Environments, Politics, Jenny E. Goldstein & Eric Nost, eds.

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  Genetic Freedom of the Seas in the Age of Extractivism: Marine Genetic Resources in Areas Beyond National Jurisdiction

  Irus Braverman

  Published as Chapter 4 in Laws of the Sea: Interdisciplinary Currents, Irus Braverman, ed.

  Areas beyond national jurisdiction are the largest environment on earth and marine genetic resources are its new, and perhaps final, frontier. It is no wonder, then, that the scope and protection of marine genetic resources in this oceanic space have been hotly contested and that a new doctrine for ocean governance has been coined in this context: mare geneticum. This chapter examines different definitions of marine genetic resources debated in the ongoing treaty negotiations over areas beyond national jurisdiction (the BBNJ), the conflicting interests involved, and how the law-science relationship has figured in these debates. Ultimately, many of the debates do not challenge the extractivist mindset, which s, decontextualizes, and recontextualizes ocean life into resources and benefits and that journey from data into information. Drawing on the details of the law-science debate about the scope of marine genetic resources, this chapter calls upon the community of ocean experts, both legal and scientific, to seize the precious opportunity of crafting a new treaty for areas beyond national jurisdiction to challenge the extractivist mindset and to consider an alternative mode of relating to ocean lifeworlds.

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  More-than-One Health, More-than-One Governance

  Irus Braverman

  Published as the introduction to More-than-One Health: Humans, Animals, and the Environment Post-COVID, Irus Braverman, ed.

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  One Health, Surveillance, and the Pandemic Treaty: An Interview with John H. Amuasi

  Irus Braverman

  Published as chapter 4 in More-than-One Health: Humans, Animals, and the Environment Post-COVID, Irus Braverman, ed.

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  Spillover Interfaces from Wuhan to Wall Street: An Interview with Chris Walzer

  Irus Braverman

  Published as chapter 3 in More-than-One Health: Humans, Animals, and the Environment Post-COVID, Irus Braverman, ed.

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  Colombia: Recent History

  Jorge Luis Fabra-Zamora and Andrés Molina Ochoa

  Published in South America, Central America and the Caribbean 2023, Europa Publications, ed. and online at Europa World.

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  Preface

  Rebecca Redwood French

  Published in Buddhism and Comparative Constitutional Law, Tom Ginsburg & Benjamin Schonthal, eds.

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  Electoral Systems and Conceptions of Politics

  James A. Gardner

  Published as chapter 8 in Comparative Election Law (James A. Gardner, ed., Edward Elgar Publishing, 2022).

  Every democratic society must settle upon some method by which diversity of public opinion may be narrowed and then transformed into concrete, binding, politically legitimate decisions about what the polity should do. In representative democracies, a key step in that process is choosing an electoral system, an institution that plays a critical role in transforming diversity of opinion among the demos into unified, presumptively consensual official policy. Although human ingenuity has devised many possible methods by which a democratic polity can record and calculate public opinion through voting, in today’s world the salient decision tends to boil down to a choice among two families of electoral systems: winner-take-all (WTA) and proportional representation (PR). Today, among the world’s democracies, more than sixty use WTA for elections to at least one national governing institution, and more than forty use PR.

  It is tempting to think of electoral systems as little more than alternative methods for tabulating votes, as interchangeable as jam and marmalade, and thus a matter solely of personal taste. This is false in two ways. First, the seemingly trivial methodologies of recording and tabulating votes in WTA and PR systems rest upon profoundly different conceptual foundations encompassing distinct and incompatible beliefs about the nature of the good, the epistemology of the good, and the nature and function of political representation. Second, the choice between the two methodologies has significant consequences for how politics is practiced and experienced by members of the polity, both locally and nationally, and by their elected representatives. To choose between the two systems is thus to choose not merely between electoral methodologies, but between fundamentally distinct conceptions of politics itself.

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  El misterioso éxito de una democracia federal

  James A. Gardner

  Published in Decisión democrática y forma constitucional, Pablo Riberi & Pedro Salazar Ugarte, eds.

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  Introduction: Election Law—Universal or Particular?

  James A. Gardner

  Published as the introduction to Comparative Election Law (James A. Gardner, ed., Edward Elgar Publishing, 2022).

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  Principios de la libertad de expresión en los Estados Unidos

  James A. Gardner

  Published in Una perspectiva global del Derecho penal: Libro homenaje al profesor Dr. Joan J. Queralt Jiménez, Dulce María Santana Vega, Silvia Fernández Bautista, Sergi Cardenal Montraveta, David I. Carpio Briz & Carlos Castellvi Monserrat, eds.