Volume 43, Issue 1

Written by Richard Albert

Some constitutional amendments are not amendments at all. They are self- conscious efforts to repudiate the essential characteristics of a constitution and to destroy its foundations. And yet we commonly identify transformative changes like these as constitutional amendments no different from others. A radically transformative change of this sort is better understood as a constitutional dismemberment, not a constitutional amendment. A constitutional dismemberment is a deliberate effort to transform the fundamental rights, structure, or identity of the constitution without breaking legal continuity. Dismemberment is a descriptive concept, not a normative one; it can either improve or weaken liberal democratic procedures and outcomes. We can accordingly speak of the dismemberment of the Turkish Constitution from democratic to authoritarian, just as we can interpret the Civil War Amendments as dismembering the infrastructure of slavery in the United States Constitution. In this Article, I draw from three types of constitutions around the world—the codified Constitutions of Brazil, Colombia, India, Ireland, Italy, Jamaica, Japan, Saint Lucia, Taiwan, Turkey, and the United States; the uncodified Constitutions of New Zealand and the United Kingdom; the partially codified Constitution of Canada—to introduce the phenomenon, concept, doctrine, and larger theory of constitutional dismemberment. I explain how dismemberment helps address current problems in the study of constitutional change, how it clarifies our understanding of constitutional amendment, and also how it challenges our presuppositions about how constitutions do and should change.

 


Written by Suren Gomtsian, Annemarie Balvert, Branislav Hock, and Oğuz Kirman

FIFA, the world governing body of football (or soccer, as it is known in some countries), has long been associated with the World Cup and, lately, corruption scandals. Less known is FIFA’s success in building a private legal order that competes with public orders. This study explains how and why this private legal order has succeeded in governing the behavior of the involved actors and keeping them away from regular courts. We argue that the ability of the order to offer what other governance modes cannot is key: FIFA, as a transnational private authority, offers harmonized institutions that apply across national borders and, in many cases, are better accustomed to the needs of the involved parties. State-made alternatives, on the other hand, are often based on a one-size-fits-all approach and lack certainty of application. In addition, FIFA’s rules increase the gains of clubs and prominent footballers. While the interests of some other involved parties—lesser-known players in particular—might be better served by the application of formal State laws, the established equilibrium discourages deviation. This study contributes to a better understanding of alternative modes of institutional design, particularly by illustrating how private orders function in an environment where reputation plays a limited role.

 


Written by Mariana Pargendler

There is a vast literature documenting how contract laws differ across jurisdictions. However, we still know little about the reasons for, and the implications of, the observed distinctions, which are generally viewed as isolated, unrelated, and arbitrary. This Article reveals a clear, but thus far overlooked, pattern in the comparative law of contracts. The civil law places more limits on the scope of contractual obligations, whereas the common law more forcefully constrains the remedies available for breach of contract. The Article offers two interpretations for these differences. On the one hand, civil and common law systems reflect different roles of the State in contract law. In the civil law, the State plays a greater part in all respects: it goes further in providing and policing the substantive terms of the agreement, but once the contract passes muster, it is willing to sanction breaches with more severe consequences. Common law systems embrace the opposite, more restrained, approach: the State is less willing both to meddle with contract terms and to supply strong remedies for non- performance. On the other hand, the treatment of contract rights and remedies in each legal tradition can be viewed as complementary. Policing the terms of the contract and limiting the consequences of breach serve as alternative, though not equivalent, strategies to mitigate the effects of harsh bargains.

 


Written by Alexandra Perloff-Giles

The most common cyber threats today are “transnational cyber offenses”— attacks like malware, ransomware, and distributed denial of service that ripple across borders, ignoring territorial boundaries and exploiting the decentralized, networked architecture of the Internet. Regulating cyber activity and imposing effective sanctions for cyber offenses is challenging, however. The traditional system of territorial jurisdiction, tied to a system of Westphalian nation-states, is ill-adapted to cyberspace. Yet, without accountability measures, cyberspace risks becoming a Hobbesian state of nature, in which victims engage in self-help and cyber-vigilantism.

The existing literature on cyber threats focuses almost exclusively on two legal frameworks: domestic criminal law and international humanitarian law. Each of these bodies of law may be appropriate for certain cyber threats. Domestic criminal law may effectively address computer crimes like identity theft and financial fraud that target specific entities or individuals residing in the same country as the perpetrator. International humanitarian law, by contrast, may be appropriate for cyber aggressions that are carried out by one State against another and that constitute a “resort to armed force.” Neither legal framework properly applies, however, to transnational cyber aggressions.

This Note therefore urges scholars and policymakers to look to international institutions to develop new accountability mechanisms beyond domestic criminal law and the law of armed conflict. In particular, this Note sketches possible solutions based on international civil arbitration, transnational criminal law, and international criminal law. As the number of transnational cyber aggressions continues to escalate, and the nascent Internet of Things promises to raise the stakes of these threats, the future of cyberspace depends upon the elaboration of an effective global accountability regime.