Abstract After decades of efforts to expand the protections of human rights to all humanity, the opposite is increasingly taking place today: the creation of rightlessness is back in vogue. The undocumented—illegal immigrants, stateless persons, and refugees—are at the forefront of policies aimed at dispossessing and deporting large numbers of residents; others may follow later. Rightlessness demands renewed engagement with Hannah Arendt’s famous phrase, “the right to have rights,” and its many interpretations. In this Article, I argue that “the right to have rights” is fundamentally a private law right: the type of freedom and belonging that Hannah Arendt found lacking can best be secured through the right to contract and rights to property. This Article analyzes both Hannah Arendt’s claims about “the right to have rights,” and the legal history of the last hundred and fifty years, in order to trace a tradition of fundamental private law rights that was deeply cosmopolitan, and perhaps the closest thing to universal law. Ironically, this tradition was undermined by its own progeny, the human rights revolution. The life and death of the cosmopolitan private law tradition are examined through the cases of Max Stoeck and Friedrich Nottebohm, whom I call “Arendt’s doppelgängers.” Stoeck and Nottebohm, like Arendt, were German émigrés and later stateless refugees who were interned, detained, and dispossessed. Before that, however, they were also beneficiaries of this cosmopolitan legal tradition, which allowed émigrés to become successful without having any immigration status. The creation of rightlessness today is tied increasingly to documentation requirements and the blocking of private transactions, rather than directly to citizenship or statelessness.
Within the burgeoning scholarship on constitution-making and constitutional design during political transitions, one distinctive constitution-making strategy has thus far received little systematic scrutiny. Several transitioning societies around the globe have drafted constitutions that mandate a one-time or periodic revisions after ratification. These mandatory review provisions may encompass either the entire constitution or apply to certain (often controversial) provisions therein. They effectively extend constitution-making beyond the single, commonly glorified "founding moment" and require that the constitution be negotiated and constructed over time. In this Article, I explore these mandatory periodic review provisions in constitution-making and examine why constitutions mandate them and reopen debates over hard-fought settlements. I argue that constitutions mandate a one-time or periodic revisions to facilitate agreement during the initial moment of constitution-making, lower the stakes of compromise, and allow room for an ongoing process of constitutional evolution and renewal. More specifically, in conflict-ridden environments, mandatory constitutional revisions play a crucial role in encouraging parties to sign onto a constitution that they would not otherwise embrace. I also examine the promise and limits of mandatory periodic revisions as compared to other forms of constitution-making in stages and explore the conditions under which these provisions are more likely to produce positive outcomes.
This Article contrasts the latent potential of the Guarantee Clause of the Constitution of the United States (Article IV, Section 4) with the recent active enforcement of article 2 of the Treaty on European Union (TEU) by the European Commission and the Court of Justice of the European Union (CJEU). Unlike the "sleeping giant" of the U.S. Constitution, article 2 TEU is awakening as an enforceable guarantee clause against the rise of authoritarianism within the European Union. The analysis reveals how the European Union's pluralist constitutional architecture, once characterized by constructive judicial dialogues, confronts escalating tensions that threaten to undermine the European Union's constitutional stability. Employing a federal constitutional theory lens, the Article delves into the origins of federations as unions of states, conceptualizing the European Union not as a sui generis entity but as a genuine federal union. This theoretical framework provides a foundation for understanding current crises through comparative federalism and the constitutional debates of the early American republic. The Article further shows that a central purpose of federal guarantee clauses or homogeneity clauses is to protect a shared constitutional identity that underpins the stability of any federal system combining self-rule and shared rule. While such clauses aim to bolster the constitutional stability of the EU, their full activation may lead to overreach. As Europe's giant awakens, the need for vigilance becomes paramount to ensure that the defense of shared constitutional values does not itself destabilize the delicate balance between the Union and the member states on which the EU's constitutional architecture rests. The Article ultimately argues that transforming the European Union's foundational values into judicially enforceable standards risks closing the political space necessary for future Europeans to contest, reinterpret, and democratically redefine those very values.
This Article examines how the regulation of, and legal argumentation about, transnational marriages fulfill economic functions. It takes as its point of departure contemporary legal frameworks governing marriages with a transnational element in Northwestern Europe, including private international law (conflicts of laws), migration law, and human rights law. It shows that lawmakers and judges largely conceptualize such marriages in the language of human rights, implying that universal standards of marriage exist, or ought to exist. This Article argues that this understanding of marriage was legally consolidated through the 1962 United Nations Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages. Prior to this, laws and legal discourse on transnational marriages in Northwestern Europe (former imperial metropoles) were dominated by relativist arguments that, in principle, treated Western and non-Western forms of marriage as distinct. Although this approach-described here as "marriage relativism"-may appear more flexible and cosmopolitan, it was largely shaped by the economic interests of colonial governance at the time. By the moment the UN Convention on Marriage was drafted and adopted, those economic interests had shifted, increasingly favoring the extension of marriage forms practiced in imperial metropoles to dependent territories that were, at the time, approaching independence. Drawing on political economy and postcolonial critique, this Article links the regulation of transnational marriages to changing economic priorities and shows how international marriage standards have been shaped by assumptions and preferences rooted in the legal and economic orders of former imperial powers and settler colonies.
This Article documents and examines Brazil's pioneering imposition of joint and several liability for labor obligations on parent companies since 1937, complicating existing narratives about the German origins of group law. We uncover evidence that nationalism and resistance to foreign corporate groups contributed significantly to this legal development. Central to Brazil's groundbreaking 1937 reform holding parent companies liable for subsidiaries' labor obligations was the concern about protecting local workers from foreign groups attempting to evade legal responsibilities through separate legal entities. This innovation has shown remarkable durability and contemporary relevance. A 2024 decision by the Brazilian Supreme Court applied the economic group doctrine to enforce its orders against X (formerly Twitter) by freezing the assets of the Brazilian subsidiaries of Starlink, also controlled by Elon Musk. Our comparative analysis reveals a gradual, if contested, trend toward eroding corporate separateness to protect workers across jurisdictions. Moreover, this development appears to be more common in the Global South, with Portugal standing as the sole Global North country examined to converge with Brazil's comprehensive statutory approach-and only after a seventy-year delay. These findings suggest that challenges in state capacity and the geographic divide between capital and labor, often pronounced along North-South lines, can shape the evolution of limited liability and corporate separateness doctrines in ways that challenge conventional narratives in corporate and comparative law.
This Article examines the articulation of sustainable development within comparative constitutional design, offering a framework for evaluating its normative and institutional depth across national constitutions. Through a deformalized and functionally attuned analysis, it explores how constitutional texts mediate the tension between ecological protection and economic aspiration, drawing on the longstanding distinction in ecological economics between weak and strong sustainability. By retracing the textual presence and structural positioning of sustainability provisions-through the lenses of law-and-political-economy and transformative constitutionalism approaches-this Article reveals wide variation in constitutional commitments to ecological transformation. It argues that strong sustainability requires the structural embedding of ecological limits within constitutional governance, thereby subordinating economic goals to the planetary boundaries that condition human and institutional life. Weak sustainability, by contrast, preserves aspirations to unlimited economic growth while providing only marginal environmental safeguards. Against this distinction, this Article calls for concise, principled constitutional provisions that directly engage hegemonic and counter-hegemonic modes of environmental protection, internalize ecological limits, and acknowledge the necessarily incremental nature of constitutional change. True constitutional sustainability, it concludes, lies not in textual volume, but in embedding ecological imperatives at the core of constitutional democracy and the rule of law.
Despite the influence of the Global North in many insolvency laws and practices in the Global South, this Article shows that the Global South has innovated in many aspects of insolvency law. In some cases, these innovations consist of solutions that, with certain adjustments, have been imported from the Global North. In others, they are genuinely "autochthonous innovations" from the Global South. This Article identifies both types of innovations, providing examples from jurisdictions such as Brazil, Chile, China, Colombia, the Dominican Republic, India, Malaysia, Mexico, Myanmar, Peru, the Philippines, Thailand, and Uruguay. More importantly, it shows how those innovations from the Global South can help mitigate certain problems existing in many insolvency systems in the Global North, such as the excessive power of debtor-in-possession (DIP) lenders and the disputes often arising when solvent firms file for Chapter 11 in the United States, the lengthy and inefficient insolvency proceedings found in many European countries, the unattractive insolvency regime for debtors currently in place in Australia and New Zealand, and the stigma of insolvency still observed in most jurisdictions around the world, including advanced economies with sophisticated insolvency frameworks such as Singapore. Therefore, whether it is for the much-needed purpose of improving the design of insolvency law in the Global South, or at least for expanding the universe of ideas that can help improve many insolvency systems in the Global North, the Global South-and the Global South beyond India and China-needs to be more actively included in the study of insolvency law. Otherwise, we will be missing the opportunity to learn from many ideas and innovative solutions that can contribute to the improvement and understanding of insolvency systems around the world.
The final years of British imperial rule in Northern Nigeria witnessed efforts to source appropriate models of legal modernization from the Muslim world. The models afloat in constitutional discourse, those of Libya, Sudan, Pakistan, and Egypt, were held up by respective proponents as ideal for resolving the long-fraught question of the relationship between Islam and public law in a modern state. Yet, the evocations of these foreign models were idealized imaginaries; by framing these models as settled facts, the Northern Nigerian evocations flattened the constitutional experience of these states and obscured unfolding struggles over the nature of legal modernity. Against the backdrop of contestations between juristic and political elites, colonial officials, and other actors, this Article chronicles the outsourcing of Northern Nigeria's legal modernization to foreign imaginaries. Even as the Northern Nigerian legal borrowing debates were conducted in the language of (competing visions of) decolonization and modernization, that discourse limited the realm of possibilities to an uncritical and, in the end, imaginary copying from postcolonial jurisdictions. The ultimate consequence was the trumping of juristic power by political authority, and the foreclosure of emancipatory possibilities for the future of law.
When countries seek to improve their judicial system, they usually tinker with the formal rules that govern the judiciary-tenure protections, salaries, and appointment arrangements. But there is a significant mismatch between the formal rules and actual judicial performance. For the past decade, then, scholars have explored informal institutions-social conventions and practices-that seem to shape judicial behavior. Informal norms can be as important as the formal institutional set-up in determining judicial independence and competence. Yet, except for particular case studies, there is little comparative scholarship on the role of informal norms in the context of judicial selection. This leads to a straightforward question: How exactly does informality bleed into the selection of judges? This Article provides a comparative study of the subterranean layer of informal norms that governs the selection of judges. Drawing on informal arrangements in Colombia, Mexico, Ukraine, and the United States, we explore how informality grows around judicial appointment processes and influences judicial performance. Our case study on Colombia builds on more than fifty interviews with government officials and judges. This allows us to offer a systematic understanding of how informal appointment mechanisms develop and exactly what role they play in different systems. We specifically identify three sites of informality that seem important in most countries: the process of preselection and vetting, the role of judicial guilds or corporatism, and the involvement of non-governmental organizations across the selection process. Normatively, we argue that differences in informal norms partially explain differences in de facto judicial independence and that countries need to plan for informality by seeding the ground for healthy norms to develop.
Constitutional conventions-the typically unwritten rules, based on the factual practice of constitutional actors, that inform, guide, and curtail the actions of those actors-are considered an essential part of the constitutional architecture in common law countries. In contrast, civil law countries have been considered less willing to embrace constitutional conventions. In post-communist European countries, legal formalism and the legacy of communist legal reasoning have further suffocated the debate on constitutional conventions even more than in the rest of the civil law world. The puzzle is whether there is room for constitutional conventions in Central Europe, despite the legacy of legal formalism and communist legal reasoning, and, if so, under what conditions. This Article addresses this puzzle and explores how constitutional conventions are understood and used in four countries (Czechia, Hungary, Poland, and Slovakia). It shows that not only the conceptualization of constitutional conventions, but also their role in political discourse and their justiciability, vary profoundly among those four countries, despite their shared Austro-Hungarian and communist legacies. This analysis yields two specific findings. First, constitutional conventions may play an important role in constitutional architecture within post-communist democracies belonging to the civil law family, but only under certain conditions. Based on the developments regarding constitutional conventions in Czechia, Hungary, Poland, and Slovakia, this Article identifies four tentative factors that contribute to the emergence and embeddedness of constitutional conventions-a lower level of majoritarianism that requires greater cooperation between constitutional actors, a stable political landscape and constitutional text, the nonexistence of an explicit rule of recognition in the constitution (that limits the sources of law to written law), and individuals trained in the common law world in crucial positions (at constitutional courts, in academia, and in politics) who embrace unwritten law. Second, the contestation of the meaning of constitutional conventions forms an essential part of the argument about constitutional conventions in the region.
Although suspension orders have gradually become a popular constitutional remedy in many jurisdictions, most literature on this topic pays scant attention to the length of grace periods. Nonetheless, one should not mistake this academic neglect for a lack of importance, as the length of grace periods is sometimes more controversial than suspension orders per se. Using recently declassified court minutes, interviews, memoirs, and other sources, in this Article, I demonstrate how justices on the Taiwan Constitutional Court determined the lengths of grace periods on the basis of three main factors: prudential considerations, practicality, and hierarchy in remedial law. I then evaluate the utility of grace periods and explain how these delicately crafted tools have sometimes succeeded in forging alliances with political stakeholders and in cajoling the political branches of the Taiwanese government into adhering to court decisions.
