Abstract This Article is an attempt to think with Arendt about the crisis of liberal democracy in the face of the populist attack in recent decades on judicial review, human rights, immigrants, minority rights, academic and judicial elites, etc. Most of the arguments deployed against populism draw on principles and vocabulary borrowed from the liberal tradition, while few come from the separate democratic tradition. Because of this, the debate has taken on a shape in which populists claim to speak in the name of democracy—the will of the people—while liberals stand in the opposing camp, thus creating a tension between liberalism and democracy. In this Article, by reflecting on Arendt’s work, I develop a democratic, rather than liberal, argument against populism. I do so by analyzing the double role that truth plays in Arendt’s political thought: on the one hand she thinks that the idea of truth can be fatal to politics, for politics is based on opinion rather than truth, on the many rather than the one, on free citizens rather than a philosopher king. On the other hand, majority opinion can become totalitarian, crushing freedom and truth as well—and as such, it constitutes a threat to politics. In such cases, truth becomes a site of resistance to totalitarianism. Truth thus plays an ambivalent role in Arendt’s politics: at times it’s a problem, at other times a solution. The Article tries to elicit a certain Arendtian conception of politics that has its own internal constraints—not borrowed from liberal morality—that can place limits on populist politics and thus provide a democratic-republican opposition to populist politics.
Abstract This Article examines the tension between liberalism and democracy in the context of elite accountability, arguing that the liberal-democratic project faces a legitimacy crisis partly due to its failure to effectively hold political and economic elites accountable. The Article contrasts classical democratic approaches to elite accountability with the liberal-constitutional framework that emerged in the 18th century. While liberal political thought pioneered a new understanding of formal equality before the law that guarenteed individual freedom through juridical due process, it simultaneously abandoned crucial democratic mechanisms for constraining powerful elites. This has resulted in two significant weaknesses: disproportionate punishment of marginalized groups and an inability to hold wealthy and powerful actors accountable. The Article suggests that reintegrating elements of preliberal democratic accountability—where the power to punish elites was a defining feature of popular sovereignty—could help address contemporary democratic deficits without abandoning liberal achievements in procedural rights. The Article proposes a number of possible institutional innovations aimed at renegotiating the relationship between liberal rights and democratic accountability for elites. These include purpose-built impeachment tribunals with direct public participation, reforms to prosecutorial incentives, fully public adversarial trial systems, and expanded qui tam provisions. By recovering democratic practices of elite accountability, liberal democracies can recover their legitimacy—achieving a balanced approach to elite deviance that preserves both popular sovereignty and individual rights, while restraining the corrupting influence of concentrated wealth and power.
Abstract The dominant conceptualization of democracy is nation-centric: it prioritizes national elections over other forms of public participation in decision-making, emphasizes a strong system of institutional checks and balances and separation of powers as key indicators of a healthy democracy, and embeds national democratic institutions into a robust liberal framework. From this perspective, local democratic institutions are viewed merely as miniature versions of national democracy, expected to operate according to the same principles. In contrast, we argue that local democratic institutions embody an alternative conception of democracy. Our conception of local democracy is grounded in the principle of local autonomy, understood as the capacity of local institutions to engage in collective self-government, which lies at the core of democracy at the local level. This alternative framework entails three main implications: first, assessing the democratic character of local institutions requires metrics distinct from those developed for the national scale. Second, local resistance to national policies, as well as local policies that tend to needs and interests left unanswered by national institutions, should be recognized as expressive of democracy. Third, at the local level, the boundaries of the liberal framework are themselves subject to deliberation and contestation, thereby complicating the relationship between democracy and liberalism.
Abstract This Article examines two interrelated puzzles in contemporary climate governance. First, how can Net Zero commitments translate from law on the books to law in action—and remain resilient over time amid political volatility and policy backlash? Second, if climate policies must be entrenched to survive over time, how can they remain democratically legitimate? As governments adopt long-term decarbonization goals, they face the persistent risk of rollback through electoral shifts, populist resistance, or vested interests. To counteract this vulnerability, actors have developed entrenchment strategies —institutional designs aimed at shielding climate policy from reversal. I identify two ideal-type models: the public law model , which relies on legal and constitutional mechanisms, and the green industrial model , which aligns market actors with climate goals through state investment and regulatory incentives. While both offer tools for long-term stability, they raise distinct normative concerns. Entrenchment may secure future commitments, but it can also limit the ability of future publics to revisit or reshape them. Drawing on legal doctrine, political economy, and democratic theory, the Article argues that resilient and legitimate climate governance must balance durability with adaptability. Climate entrenchment should preserve the freedom of future citizens to contest, reinterpret, and revise the commitments made in their name. Climate policy must therefore be both forward-looking and democratically accountable—protecting the conditions for collective self-government even as it seeks to safeguard the planet for generations to come.
Abstract The tense relationship between constitutionalism and democracy has been a frequent topic of discussion among academics and politicians. In this Article, I present and critically discuss four different, contemporary approaches to this conflictive relationship between constitutionalism and democracy. I shall call these four different responses: (i) against democracy; (ii) for constitutionalism (or “for constitutional restoration”); (iii) against constitutionalism; and (iv) for democracy (or “for democratic restoration”). In particular, I give some reasons in favor of (some version of) the latter position (“for democracy”), which I identify with the idea of a “conversation among equals.”
Abstract How can liberalism survive and perhaps even thrive in a post-liberal society? Liberal political theories have generally failed to address this question, in the belief that liberal values and institutions offer a sufficient solution to the problem of value diversity and political disagreement. Modous vivendi theories are better suited to meet the challenge, but the emphasis on political stability hinders their ability to address inherently turbulent political constellations. Taking Israeli politics as its case study, this Article offers “avant-garde liberalism” as an alternative conceptual framework, which is simultaneously more modest and more ambitious than mainstream liberal approaches. Avant-garde liberalism concedes that liberal values are not the rules of the political game, but precisely for this reason it “frees” liberalism to advance a more ambitious vision of freedom and equality. The Article places “avant-garde liberalism” within the broader frame of “redemptive politics” in which radically divergent ideologies are committed to promoting competing eschatologies, even as they recognize their inability to fully realize their commitments in the foreseeable future. The Article concludes by examining the implications of avant-garde liberalism in the post-October 7 reality as well as its relevance outside the Israeli context.
Abstract The declining ability of the state to deliver effective outcomes on the major issues of the day is among the greatest challenges democracies currently face. In this Article, we address two features of contemporary structures of democracy that contribute to this problem. One is excessive participatory requirements that have arisen based on the belief that government functioning must be more directly accountable to interested stakeholders. Process necessarily imposes its own costs, and reformers too often think that the problem with the functioning of government is always to expand participation even further. In the U.S., the way the practices of agency notice and comment have developed, as well as those of judicial review and other forms of accountability, now contribute to a long wind-up process for government action, too often followed by cost overruns, delay and, too frequently, abandonment of the project. This is the process that Francis Fukuyama aptly dubs the rise of “vetocracy.” A second means through which state capacity has declined reflects the weakening of political parties. Absent strong parties to channel choice and enforce tradeoffs between different constituencies, each proposed piece of legislation has to organize its own constituency out of disparate interest groups. The result is a decrease in legislation overall and a tendency for legislatures, even when in the hands of one party, to engage in largely symbolic legislation intended to signal virtue generally, even at the expense of accomplishing very much. These two features of contemporary practice contribute to the weakening of state capacity and the current dissatisfaction with democratic governments.
Abstract For more than twenty years under Chinese rule, Hong Kong was a liberal autocracy: it had the rule of law and ample freedoms without full democracy. Since 2020, however, Hong Kong’s freedoms have rapidly declined. This Article examines the case of Hong Kong to understand the factors that contribute to the sustenance and decline of liberal autocracy. It highlights two considerations that underlie an autocrat’s calculus for maintaining liberalism. The first is the perceived level of threat to the autocrat’s rule posed by such maintenance: the lower the perceived threat, the more likely the autocrat is to maintain liberalism. Hong Kong’s experience suggests a possible sequence in which the decline of liberalism may occur: the autocrat may puncture the rule of law first and then, only upon further escalation of the perceived threat, proceed to use the law for the large-scale repression of human rights. Hong Kong’s experience also suggests the instability of a model of liberal autocracy that includes extensive freedoms of political expression, and the challenges of using such a model to transition towards liberal democracy. The second consideration in the autocrat’s calculus is the extent to which the polity is economically independent of the maintenance of liberalism: the greater the extent, the less likely the autocrat is to maintain liberalism. Hong Kong’s experience has relevance not just for the sustenance of what liberalism is left in the territory, but also for the maintenance of liberal enclaves within authoritarian states more generally, as well as for liberal regimes dealing with such states.
Abstract This article aims to contribute to the studies on democratic resistance amid populist autocratization by analyzing repression against civil society, democratic responses, and the interplay between them. It explores how and in what forms repression and democratic resistance develop, are contained and sustained during such autocratization, with an emphasis on populist electoral autocracies. Civil society plays a role in engaging with populist autocracies that possess electoral legitimacy, in contrast to the situation under closed autocracies, although these interactions occur under challenging conditions. The mutually reinforcing relationship between liberal constitutional constructs and civil society challenges the stability of a populist electoral autocracy. The article employs several instances, primarily focusing on Türkiye’s populist electoral autocracy, to assess conceptual findings on repression, investigate the autocratic challenges, and illustrate strategies for democratic resistance. It highlights the roles of feminist mobilizations, human rights defenders, democratic partnerships, and judicial review against ongoing repression in nondemocratic contexts where democratic resistance appears robust. Despite the challenges faced by civil society in non-democracies, the vibrant practices of democratic resistance underscore the necessity for reforms in liberal-democratic constitutional frameworks. These reforms may encompass inclusive formal arrangements for civil society and institutional arrangements for democratic partnerships by reconsidering the civic-institutional relationship. In light of democracy-learning and democracy-defending experiences in nondemocracies, further research is needed on constitutional innovations, particularly regarding enhanced political participation, democratic partnerships, protection for human rights defenders, guarantees for political opposition, prevention of judicial repression, and rights-enforcing judiciaries.
Abstract In recent years, comparative constitutional lawyers have turned their attention to the study of democratic backsliding. However, such scholarship is yet to draw on the now extensive literature on traditional authoritarian systems. The bifurcation of regime type that has structured comparative legal research for decades—for comparative constitutional lawyers and for scholars of specific authoritarian regions—is now under strain. With the global rise of authoritarianism and the growing use of law by authoritarian states, the world is harder to neatly separate into two camps than it once might have been. This Article reflects on how we might place two bodies of literature—on comparative constitutional law and on the study of authoritarian law—in conversation with one another, and how we might study a world with a plurality of regime types, where in many cases there is increasingly a continuum both in regime type and in legal practices. In proposing that we bring together scholarship on traditional authoritarian regimes and contemporary scholarship on democratic backsliding, we hope to illuminate what might be democratic or authoritarian about a particular legal practice, which in turn can shape how we understand democracy and authoritarianism.
Abstract How should legal academics respond to authoritarian populists? What shape should their public interventions take? To address these questions, this article reframes the activism of legal scholars against populism as a struggle over competing legal theories. It is well documented that authoritarian populists make opportunistic use of democratic institutions, in particular constitutional reform and lawmaking by an elected legislature. This article distills a particular populist conception of law embedded in the arguments put forward by populists to defend and legitimate their uses of law. The populists’ legal theory views law as a pure expression of popular will, with two corollaries. First, it completely collapses law into politics. Second, it adopts an extreme form of legal positivism. One way to counter the constitutional and legal changes advanced by populists is to challenge their legal theory, a task that seems appropriate for legal academics. Through a discussion of the mobilization in 2023 by legal academics in Israel, this article argues that countering authoritarian populists’ legal theory is fraught with tensions. Though Israeli legal academics did not claim to operate at the level of legal theory, their arguments against the Israeli government’s legal proposals implicitly challenged the government’s jurisprudential approach. We show that doing so required reclaiming some autonomy for law from politics, but that this was in tension with the task of countering the government’s positivism—since the latter required appealing to values. In addition, the organization of legal academics into activists aiming to mobilize public opinion stood in tension with the claim of legal expertise distinct from politics. We conclude tentatively that while legal scholars have unique contributions to make to the struggle against authoritarian populism, these contributions are necessarily embedded in a moral-political outlook—one that should generally be acknowledged and actively defended in the political arena as well.
Will AI technology disrupt the current Big Tech Barons, foster competition, and ensure future disruptive innovation that improves our wellbeing? Or might the technology help a few ecosystems become even more powerful? To explore this issue, our Article outlines the current digital market dynamics that lead to winner-take-most-or-all ecosystems. After examining the emerging AI foundation model supply chain, we consider several potential antitrust risks that may arise should specific layers become concentrated and firms extend their power across layers. After raising several countervailing factors that might lessen or prevent these antitrust risks, we conclude with suggestions for the policy agenda to promote both healthy competition and innovation in the AI supply chain.
The emergence of algorithms poses fundamental challenges to competition law. The issues of algorithmic collusion and personalized pricing from the perspective of price discrimination have been extensively studied and are relatively well understood. What has escaped the attention of scholars and enforcers is the possibility that personalized pricing facilitated by algorithms may alter the way market power is exercised and abused. Predatory pricing is probably the most obvious candidate for an abuse whose nature may be altered, perhaps fundamentally so, by personalized pricing. It turns out that tying is another abuse that is ripe for transformation by algorithms. This Article explores how the market power threshold, the potential theories of harm, and possible pro-competitive justifications for tying may need to be reconceptualized as a result of personalized pricing.
This Article presents an in-depth analysis of the challenges that competition law enforcement faces in light of the rapid advancements in AI, quantum computing, and synthetic biology. It delves into the various approaches that competition law institutions, such as competition agencies and courts, can adopt to address the uncertainties surrounding the competition impact of corporate strategies and conduct in developing and applying these new general purpose technologies. The Article focuses on the four key features of this “coming wave”: asymmetry, hyper-evolution, omni-use, and autonomy, all interconnected with the rise of complex systems that contribute to uncertainty. It explores the limitations of the ordinary risk management (ORM) approach typically followed in competition law, based on the expected utility framework. It advocates for the application of the precautionary principle as a more accurate description of the approach taken by competition authorities in this context and a more normatively adequate option for regulating threats of harm in complex systems while incorporating responsible innovation concerns. Moreover, the Article extensively examines how the precautionary principle can be seamlessly integrated into the design of competition law institutions and the substance of competition law, discussing the various containment tools used by competition authorities to address uncertainty.
Federal agencies have struggled to develop a comprehensive strategy for AI regulation due to the technology’s rapid development, its capacity to act autonomously, and the low barriers to entry and unpredictability of AI developments. Agencies across the federal government nonetheless are experimenting extensively with AI, operating as AI researchers, purchasers, users, and developers. In this Article, we juxtapose questions that agencies face in devising a regulatory scheme for AI with similar questions they have already had to answer in their experience as AI users. From adjudication to public engagement to law enforcement, federal agencies’ extensive experience integrating AI into their projects and missions can shed light on prudent courses of AI regulation. Moreover, governmental uses of AI can improve the credibility of the government as a regulator, increasing regulated entities’ confidence in the stability and effectiveness of the government’s regulatory schemes. Governmental uses of AI can inform the “why regulate” question by illustrating aspects of AI-induced market failures such as barriers to competition, information asymmetries, and externalities. Governmental uses of AI also offer lessons that bear on when regulators have enough information to regulate effectively and how to know if they are waiting too long. Finally, beyond informing regulation, governmental AI uses can shape private-sector AI use by catalyzing development of AI tools and by signaling appropriate AI uses and best practices to private-sector AI developers.
The commercial launch of ChatGPT in November 2022 and the fast development of large language models have catapulted the regulation of artificial intelligence to the forefront of policy debates. A vast body of scholarship, white papers, and other policy analyses followed, outlining ideal regulatory regimes for AI. The European Union and other jurisdictions have moved forward by regulating AI and LLMs. One overlooked area is the political economy of these regulatory initiatives—or how countries and companies can behave strategically and use different regulatory levers to protect their interests in the international competition on how to regulate AI. This Article helps fill this gap by shedding light on the tradeoffs involved in the design of AI regulatory regimes in a world where (i) governments compete with other governments in using AI regulation, privacy, and intellectual property regimes to promote their national interests; and (ii) companies behave strategically in this competition, sometimes trying to capture the regulatory framework. We argue that this multilevel competition to lead AI technology will force governments and companies to trade off risks of regulatory arbitrage versus those of regulatory fragmentation. This may lead to pushes for international harmonization around clubs of countries that share similar interests. Still, international harmonization initiatives will face headwinds given the different interests and the high-stakes decisions at play, thereby pushing towards isolationism. To exemplify these dynamics, we build on historical examples from competition policy, privacy law, intellectual property, and cloud computing.
“Choice engines,” powered by Artificial Intelligence (AI) and authorized or required by law, might produce significant increases in human welfare. A key reason is that they can simultaneously (1) preserve autonomy and (2) help consumers to overcome inadequate information and behavioral biases, which can produce internalities, understood as costs that people impose on their future selves. Importantly, AI-powered choice engines might also take account of externalities, and they might nudge or require consumers to do so as well. Different consumers care about different things, of course, which is a reason to insist on a high degree of freedom of choice, even in the presence of internalities and externalities. Nonetheless, AI-powered choice engines might show behavioral biases, perhaps the same ones that human beings are known to show, perhaps others that have not been named yet, or perhaps new ones, not shown by human beings, that cannot be anticipated. It is also important to emphasize that AI-powered choice engines might be enlisted by insufficiently informed or self-interested actors, who might exploit inadequate information or behavioral biases, and thus reduce consumer welfare. AI-powered choice engines might also be deceptive or manipulative, and legal safeguards are necessary to reduce the relevant risks
Competition laws are influenced by economic presumptions regarding how markets operate. Such presumptions generally relate to how humans interact, such as how human decision-makers—whether acting as individuals or as a firm’s agents—gather information, send signals, and deal with complex, uncertain, or fast-changing market environments. The exponential growth in the use of algorithms by market participants to perform a myriad of tasks is challenging such presumptions. The lowering of access barriers to real-time data on market conditions, coupled with semi-automated decision-making by sophisticated and autonomous robo-economicus, requires us to rethink the economic presumptions embedded in our laws. Indeed, as we show, in many cases, the application of existing legal presumptions to markets in which decisions are made by sophisticated algorithms operating on big data increases the instances and harms of false negatives and, albeit less frequently, false positives. While research thus far has focused on the effects of algorithms on specific types of competition rules, this article suggests a general framework for identifying such effects. We employ decision theory to help determine how competition laws should be optimally framed in the age of algorithmic decision-making. As we show, once the use of sophisticated AI-empowered algorithms is assumed, legal presumptions with regard to some types of conduct must be changed. We suggest a typology of six different effects, ranging from no effect at all to a need for new prohibitions. Our theoretical analysis is aided by real-world examples, including cases where the introduction of sophisticated algorithms affects the choice between rules versus standards, the content of the prohibition, or procedural rules. We hope our meta-analysis brings more clarity to a much-needed reboot of our regulatory framework in the age of algorithms.
Data is a contextual phenomenon. It reflects the social and material context from which it is derived and in which it is generated. It embeds the purposes, assumptions and rationales of those who produce, collect, use, share and monetize it. In the AI and digital platform economy, data’s role is primarily infrastructural. Its core uses are internal to companies. Data only rarely serves as a medium of exchange or commodity, and more frequently serves to profile users, train models, produce predictions, and bundle and extend product capabilities, which in turn are sold to advertisers and other customers. Insofar as they focus on the former, many technical, economic and legal attempts at defining data have inspired reductive policy efforts that include data protection, data ownership, and limited data sharing remedies. This Article argues that understanding data as part of infrastructural pipelines can have significant conceptual and policy implications, and can redirect the way privacy, property and antitrust experts understand and govern data. This argument becomes more salient as market actors and regulators grapple with the catalyzing effects of neural networks and generative AI models on digital markets. In antitrust and competition law especially, regulators are consciously adopting a view of data as an infrastructural input into AI and other digital markets. Treating data as an input in regard to which certain firms have competitive advantages can have significant implications for nascent AI markets, and yet the views in antitrust remain too narrow. Understanding data infrastructurally means viewing it not only as a critical input but also as inseparable from other material digital resources such as protocols, algorithms, semiconductors, and platform interfaces; as having important collective functions; and as calling for public-interest regulation. Understanding data as infrastructure can move us past limited legal efforts and remedial solutions such as data separations, data sharing, and individual controls, and help reorient how data is produced, stored and managed toward public uses.
Abstract Elected constituent assemblies (CAs) have become ubiquitous when a complete constitutional replacement is demanded. Many have taken note of CAs’ failure to establish lasting democratic regimes and have suggested specific institutional designs, frequently including extraordinary and specialized unicameral assemblies elected by virtue of proportional electoral formulas and functioning with a simple majority rule, subject to an exit referendum. This design is not neutral as regards its outcome; more outcome-based reasons must be introduced to the debate. Differentiating short-term sociological legitimacy based on specific electoral preferences from long-term sociological legitimacy based on future self-government can help elucidate the problem. We should rethink the role of electoral mechanisms in supporting claims for the legitimacy of CAs and their constitutional proposals.
