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ICON Volume 19, Issue 2: Editorial

Editorial: The unequal impact of the pandemic on scholars with care responsibilities: What can journals (and others) do?; Guest Editorial: Constitutional innovations: Tackling incumbency advantage/abuse; In this issue

The unequal impact of the pandemic on scholars with care responsibilities: What can journals (and others) do?

COVID-19 has been devastating in all sorts of ways for communities and individuals everywhere, exacerbating existing inequalities and structural injustices, such as those pertaining to race, gender, and wealth.  And while the harms have been more brutal and life-changing in other contexts, the highly uneven impact of the pandemic has been felt amongst the relatively privileged scholarly community around the world too. The adverse effects of COVID-19 on scholarly work, and the costs of the pandemic, have been unevenly distributed across the academic community in ways that are becoming increasingly evident.  

In an ideal society, one free of patriarchal structures and practices, one would expect the burdens of caregiving to be evenly distributed. As a result, in such a society, the impact of the pandemic-related closing of schools and care-giving facilities would also be equally distributed. Unfortunately, the reality is otherwise. Even in pre-pandemic times, in heterosexual marriages, women do significantly more work, both in terms of housework and child-rearing, than their partners.[i] And in American law schools, data suggests a parallel phenomenon: women, and particularly, women of color, often see their service responsibilities go unrecognized and unrewarded.[ii]

The unsurprising result of these existing disparities is that the impact of the pandemic on the workplace, including academia, has been distinctively gendered. In the U.S. alone, nearly 3 million women left the workplace last year.[iii] Globally, data suggests that women were more likely to lose their jobs as a consequence of the pandemic in comparison to men, and other gender disparities, both in payment and in domestic work, were also heightened as a result.[iv] A recent survey found that while 71% of fathers reported better mental well-being as a consequence of working from home, only 41% of mothers did.[v]

In academia, the impact of the pandemic follows the same gendered pattern.  While some studies have found that women are submitting[vi] and publishing less than before the pandemic, a new large-scale study has found that although both men’s and women’s productivity increased during the first months of the pandemic in comparison to the same period the year before, women’s productivity did not increase as much as men’s.[vii]

This is deeply concerning, and we hope that as the evidence continues to mount and data is gathered, academic institutions will give serious consideration to ways in which they can respond to these—in some ways predictable—impacts and inequalities. In our capacity as journal editors, we are particularly focused on the way in which the heightened impact of uneven caring responsibilities during the course of the pandemic is likely to be reflected in our tables of contents.  As we wrote before the pandemic, the number of women submitting their work to I•CON has declined in recent years,[viii] and while EJIL had generally seen an upward trend, the last year on which we have published statistics also shows a drop. And it is now clear that the closure of schools and care facilities during much of the pandemic, and the greatly increased domestic burdens on those with care responsibilities—who are often, though not only women—has significantly affected the time available to them for academic research, writing, and submission of work for publication.  In this editorial we outline some measures that we, as journals and journal editors, plan to adopt and to recommend, and we conclude by encouraging other institutions and actors to similarly reflect on what measures they might take to address the problem.

In spite of the limited reach and scope of the solutions that journals can implement, we want to do what we can about those dimensions of the problem that we, as editors, have the power to address. To that end, the EJIL and I•CON editorial boards held an extraordinary joint meeting to discuss what the journals might do.  Intersectionality and the existing disadvantages faced by scholars in some countries of the Global South featured prominently both in the assessment of the problem and in brainstorming about ways to think about countering the impact. Many dimensions of the unequal impact of COVID are so entrenched as well as structural that they require responses well beyond that which individual journals can undertake. Nevertheless, we hope that even by drawing attention in this editorial to the problem, our readers—including those in positions of leadership or influence within academic institutions—will be prompted to do their own brainstorming about what steps could be taken within other contexts to address it. 

In terms of the measures EJIL and I•CON might take, a range of ideas was floated and some of these suggestions are currently being developed.  We are, for instance, working on a symposium to shed light on the uneven impact of COVID on academic publishing, particularly for those with care responsibilities, and to present ideas for other actors such as universities whose contributions will be critical to addressing the problem.

We also aim to take steps that can be put into effect immediately. First, EJIL and I•CON have for some time requested authors to accompany their submission with a cover letter.  We encourage authors, if they wish to do so, to use this cover letter to mention any impact that COVID-related caring responsibilities may have had on their work.  It is not that we envisage a special rubric for “COVID-impacted articles.”  Rather, we would like to have as much relevant information as possible regarding the ways in which COVID-related caring responsibilities may have affected the ability of authors to do their research. We do not have a predetermined view as to how we are likely to respond to individual impact statements: individual circumstances will vary considerably and different impacts require different responses. But in some circumstances we may be able to respond helpfully, and the information will in any case allow us to reflect further on how better to address the problem.

This cover-letter initiative, of course, refers only to those who have managed to produce an article and to submit it to the journal.  Yet those who have been hardest hit by caring responsibilities and by their changed domestic-work relationship during the pandemic may find it difficult to reach the stage of submission, and hence of writing a cover letter to accompany it. What such scholars most need is uninterrupted time to research and to write, and this is not something that I•CON or EJIL can readily provide.  However, we want to encourage scholars who have found themselves in such situations to make use of the many ways in which the journals publish ideas. 

A lengthy, full-fledged article is not the only way in which to communicate an idea, to make an argument, to present a scholarly contribution or to plant the seeds of an idea for future research.  EJIL and I•CON have developed numerous rubrics, sections and modalities to allow for a variety of scholarly inputs of different character, length and purpose.  One possible vehicle for academics who have found themselves struggling to carve out the time for a longer paper during the pandemic would be the “Reply” option in our Debate section. A reply of, say, 3000 words, which reacts to another author’s previously published article and which engages with the argument of that article can provide the opportunity for pitching a new idea. Similarly, a book review might be a forum for testing out some thoughts, which could provide the seed for the later development of a fuller-fledged argument or idea. A blog post on I•CONnect or EJIL: Talk! could serve a similar purpose, launching some thoughts and generating debate in an initial intervention, which might later become a more developed piece but which in the meantime keeps that scholar engaged in publication and in academic exchange.

Any kind of publication requires time, but some of these lighter or shorter forms may be more easily completed in the periods between caring obligations than the proverbial daunting academic article. We recognize, of course, that such measures will not always help those who have to satisfy more specific publication requirements. Those who are worried that such submissions do not “count” because they are not perceived as being “peer reviewed” should feel free to mention this in a COVID-impact statement in the cover letter, and we will try to address this too. Everybody needs peers, not to mention peer review. As the months without personal meetings and academic travel go by, COVID-induced isolation may take a toll not just on us as persons but also on our academic work.  While online workshops and conferences can be more family-friendly than those requiring travel and time away, they often lack the closer engagement and relationship-building opportunities offered by in-person meetings, which can help stimulate collaborative scholarship. Peer review is certainly not an alternative to such events, but it is at least a form of academic exchange and engagement with scholarship. Perhaps such exchanges can momentarily interrupt the sense of isolation that carers in particular may experience: the professional world is marching on, while they feel disengaged from it and exhausted from care work.     

A number of suggestions were made in our joint editorial board meeting that went beyond the role of journals to other domains of academic life, and we would like to share these with our readers as they consider how to handle the impacts of the pandemic in their own academic institutions. Some of these suggestions reflect broader concerns about academia that we have voiced in previous editorials. Amongst them are the need for universities to recognize and give due credit to the importance of different forms of academic service in making tenure and hiring decisions.[ix]  Given that service of this kind has typically continued through the pandemic—with women often bearing a disproportionate burden[x]—it has become an even more urgent and important issue to address.  Universities should also consider lightening the teaching load of academics who have significant care-giving responsibilities or were disproportionately affected by the pandemic, and/or extending the tenure period where appropriate.  

Although universities have the primary responsibility to adopt measures to solve what is an institutional problem, given that resource-intensive solutions of this kind cannot or will not realistically be contemplated in all universities, it seems a good moment to encourage acts of solidarity both within and between institutions.  We could consider supporting colleagues who have significant care responsibilities as well as asking for support when we need it ourselves. This horizontal solidarity could translate into collaborating with others on teaching or research or temporarily taking an increased administrative workload.  Such collaborations might even have the effect both of helping to reduce the teaching burden for those with care responsibilities and, at the same time, foster productive disciplinary and collegial engagement.  International law and comparative constitutional studies are global fields, and it is clear that online teaching, whatever its limitations and disadvantages, has provided opportunities for classes to be opened up to external speakers, exposing students to a broader and often transnational range of ideas. Nonetheless, it is worth stressing once again that individual acts of solidarity cannot, on their own, provide a solution to an institutional problem. And in any case, the most important form of solidarity will be to exercise one’s own power within universities and academia to push for institutional measures to whatever extent possible.

Finally, we note the obvious fact that the gender, racial and other injustices and disparities which the pandemic has exacerbated have long predated it, and that ex post measures of the kind we propose will serve as little more than a band-aid in the absence of an institutional and political commitment to acknowledging and addressing the underlying causes.  Nevertheless, by drawing attention once more to these disparities and by pledging to do what we can in our capacity as journal editors to address them within this field, we also hope to prompt others to do likewise and to contribute to a broader and more fundamental debate on the issues.

The I•CON Editorial Team

We invited Adem K. Abebe, member of ICON’s Advisory Board and Programme Officer in the Constitution Building Programme, International IDEA, to write a Guest Editorial. The editorial is interesting and evocative on a variety of levels, not least in being one of those (no doubt many and unacknowledged) instances where the Global North can learn from the Global South. 

Constitutional innovations: Tackling incumbency advantage/abuse

The field of comparative constitutional law has grown in leaps and bounds in the last couple of decades. Constitutional scholars and makers now routinely draw on constitutional approaches from countries near and far, both to advance or undermine “liberal” constitutionalism. This brief editorial seeks to contribute to this conversation and particularly draw attention to, and encourage, systematic study of innovative constitutional designs by using creative constraints on the “incumbency advantage” from Bangladesh, Cape Verde, and Madagascar as examples, and, in the process, urging a more circular and reciprocal “migration” of constitutional ideas between “North” and “South.”

The incumbency advantage is a well-known phenomenon in electoral processes (and in business). In brief, it suggests that when politicians currently holding positions of power (incumbents) run for reelection, they enjoy inherent advantages which enhance their chances of victory. Statistically, even in the so-called “established” democracies, the prediction holds that incumbent politicians, notably incumbent presidents, are much more likely to be reelected than their challengers. This advantage has been attributed to the relative name recognition and familiarity of the incumbent among voters; perceived/proven leadership experience; and access to state resources, platforms, and networks. To this, one may add inertia, or what behavioral scientists call “status quo bias,” which describes an emotional preference (arising out of mental “laziness”) for extant states of affairs.

In countries where the electoral playing field is uneven, the incumbency advantage tends to morph into outright incumbency abuse, where incumbents use a combination of electoral manipulation, economic and political patronage, and even active suppression in order to improve their chances. Notably, according to a recent study, incumbent presidential candidates almost always win in elections in Africa; while in elections where incumbent presidents do not run for various reasons, the chances for opposition victory against the candidate of the ruling party remarkably rise to 50%.[xi] Departing incumbents appear less keen to rig elections even on behalf of their party successors.

1. Limiting the incumbency advantage

Constitutional designers and advisors recognize the incumbency advantage/abuse and have sought to minimize it through different means. The most common of these is the imposition of term limits on incumbents, particularly on presidents. Term limits effectively seek to reset the electoral field to a more balanced level. Notably, constitutions that impose single-term limits or ban consecutive reelection seek to cancel out the incumbency advantage the most. By regularly making electoral contests “open seat,” term limits provide a much-needed hard reset to democratic competition. Nevertheless, term limits remain theoretically and practically contested because of (1) the perceived undemocratic limit on voters’ right to choose and candidates’ right to stand for election, (2) for increasing the chances of breakdown as incumbents seek to bypass them, and (3) as they arguably also undercut incumbent motivation to deliver.

A second common constitutional design option, often concurrent with term limits, is the transfer of election management functions to independent electoral bodies. The establishment of such commissions theoretically seeks to ensure a level electoral field and to insulate the management of the electoral process from incumbents and political groups who have a direct stake in the outcome. Some countries, notably federations, also decentralize the electoral management process, making it difficult for any single political group to undermine the elections. The trouble is, in practice, many formally “independent” electoral management bodies are perceived to be, and often are, partisan.

While critical to limiting the incumbency abuse or advantage, these two common approaches do not always deliver. Consider three recent elections in Belarus, the United States, and Uganda.

The August 2020 Belarussian presidential elections provide a classic example of incumbency abuse. President Alexander Lukashenko, in power since 1994, ensured that any viable opposition candidates were excluded on flimsy legal grounds with the help of the incumbent’s allies in the judicial and prosecution services, and a captured, pliant electoral commission. When opposition groups ultimately coalesced and nominated Sviatlana Tsikhanouskaya, the wife of one of the excluded candidates, the incumbent reportedly engaged in a rampant electoral fraud that secured him more than 80% of the votes. This did not sit well with the public, and protests burst out across the country. The government has sought to brutally suppress the protests, but, ultimately, the president was forced to make a concession and call for elections under a new constitution. The opposition is not convinced about the gestures towards competitive democracy; and whether a new constitution and elections would herald a season of democratic competition is anyone’s guess.

The United States faced perhaps one of the most serious electoral crises during the November 2020 presidential elections. Following the elections, President Donald Trump rejected the electoral outcomes in states that did not favor him, and even sought to pressure at least one state governor to overturn the results that confirmed Joseph Biden’s victory. Fortunately, the decentralized electoral management system, controlled at state and local levels, rather than by a single entity at the federal level, alongside independent courts, made it virtually impossible for Trump to run roughshod over the process. In the end, the crisis, and its very intensity, simultaneously showed the potential vulnerabilities and the resilience of the country’s democracy.

The January 2021 elections in Uganda pitted incumbent President Yoweri Museveni, in power since 1986, against a musician-turned-politician Robert Kyagulanyi Ssentamu, more popularly known with his stage name “Bobi Wine.” The pre-election period was characterized by suppression of opposition supporters and the detention and disruption of Wine’s campaigns. The government actively used the bureaucracy, particularly the security sector, with armored military helicopters and tanks deployed in some streets, in favor of the incumbent. The Election Commission was at best unable to constrain flagrant abuse of state resources and institutions and at worst complicit in the electoral debacle that confirmed Museveni as winner of the elections. Museveni orchestrated the removal of constitutional term limits on presidential candidates in 2005 and age limits in 2018 to allow him to run again.

2. Unorthodox ways

In recognition of the inherent tendency to self-deal through ostensibly legal and illegal means, so apparent in the three examples above, a handful of countries have experimented with aggressive institutional design to limit the incumbency advantage and opportunities for abuse. One approach involves removing the incumbent from power sufficiently in advance of the election date, resulting in a form of a caretaker administration until a new candidate is confirmed and takes over. This approach seeks to effectively render each election cycle an open-seat contest. It recognizes the irresistible temptations of self-interest and seeks to reduce their impact on electoral process and outcomes. Broadly speaking, it could be linked to the logic that motivated the French Constituent Assembly in the late eighteenth century to adopt a motion to exclude the members of the assembly from subsequently vying for office under a constitutional framework they had themselves designed. 

This unorthodox method of leveling the field was first given constitutional status in the early 1990s at the height of the “third wave” of democratization in three very diverse settings—Bangladesh, Madagascar, and Cape Verde. As innovative as it appears, the idea does not seem to have managed to successfully “migrate” to other jurisdictions. In fact, in Bangladesh, it has been abolished; however, it remains very popular, and calls for its reinstatement are synonymous with calls for reestablishing the country’s democracy.

The history of the non-political caretaker government’s rise and fall in Bangladesh is fascinating and deserves a more detailed narration. Bangladesh had been under an autocratic regime virtually since its emergence as a state in 1971, when popular pressure and changing international context forced the incumbent president, who was conducting sham elections to cement his control, to agree to transition to democracy in 1990. Central to the opposition’s demand was a return to a parliamentary system of government, which was accepted. Notably, there was little trust in the electoral institutions, and the opposition demanded that elections be held under a non-partisan caretaker government, which was reluctantly endorsed. The opposition Bangladesh Nationalist Party, led by Khaleda Zia, won the first elections in 1991 and formed a government; the Awami League, led by current Prime Minister Sheikh Hasina, came second, and the incumbent came in third with under 12% of the votes.

The political consensus over the caretaker government was constitutionalized in 1996, primarily following the pressure from the Awami League and other opposition parties, whose representatives in parliament resigned en masse and organized nationwide strikes. The government went ahead and organized elections in 1996, which the opposition boycotted, leading to the ruling party’s complete control of parliament. The ruling party finally gave in, and the new parliament passed the Thirteenth Amendment to the Constitution; however, without significant input from the opposition groups. Under the amendment, the government would resign sixty days ahead of the election day. The president of the country then appoints a caretaker government, composed of a chief advisor selected from among recently retired chief justices—normally the last retired chief justice —and other advisors, who serve as ministers. The purpose of the caretaker government was to enable the election commission to organize free and fair elections, and to support it in doing so. 

The opposition Awami League won the second 1996 elections. The 2001 elections, won by the opposition Nationalist Party, were also held under a caretaker government. So far, the caretaker government had proved to be a crucial institution in leveling the electoral playing field. Perhaps because of its success, the ruling party in 2004 adopted the Fourteenth Amendment, which introduced several changes, including raising the retirement age of supreme court justices. As the caretaker government is normally headed by the most recently retired chief justice, this reform was seen by the opposition Awami League as a manipulation to ensure a pro-government caretaker government leader would be in charge of the upcoming 2006 elections. The chief justice at the center of the saga ultimately withdrew from the position, but the damage was done. Following an intense political crisis and popular protests and strikes, a military-backed new caretaker government arrogated itself significant powers, including the authority to combat corruption among the political class. This government led the country for far more than the two months allowed under the Constitution, until it was ultimately forced to organize elections in December 2008, which the Awami League won.

Rather than fixing the loopholes in the Thirteenth Amendment that made the 2004 manipulation possible, the Awami League took the opportunity to dismantle the caretaker government system altogether, by means of both judicial challenge and a constitutional amendment. The Supreme Court held in 2011 that, almost sixteen years after it had been adopted, the Thirteenth Amendment contradicted the “basic structure” of the Constitution, and was therefore invalid.[xii] The Court held that the caretaker government was incompatible with the principle of “democracy” outlined in the Preamble to the Constitution. It nevertheless advised that the caretaker government should remain operational for at least two further electoral terms. Nevertheless, the Awami League simply adopted a Fifteenth Amendment, which immediately abolished the caretaker government. The Awami League has won every election since then, with opposition groups accusing the ruling party of abusing the electoral and judicial process. The main opposition Nationalist Party continues to boycott the elections and organize strikes, demanding, among others, the reinstalment of the caretaker government. Interestingly, despite the assumption that the caretaker government was critical to leveling the electoral playing field, there was no provision requiring a more stringent amendment procedure than there is for other provisions (such as requiring a minimal level of opposition support to its modification or abolition).[xiii]

The caretaker-government approach has also been adopted in Cape Verde and Madagascar, interestingly around the same time as in Bangladesh. Notably, in Cape Verde and Madagascar, the approach was adopted in the “original” constitutions in 1992, and the two countries have a presidential system of government. The approach has survived significant constitutional reforms in Madagascar in 1996 and 2010, and is still in place in Cape Verde. It is important to note that, unlike in Bangladesh, the transitional presidents in Cape Verde and Madagascar are not neutral, and may be political opponents of the incumbent. While there is no doubt about the intention behind the establishment of caretaker presidents in the two countries, the background context, inspiration, and the key stakeholders that sought the adoption of this system are not very clear.

Under Cape Verde’s 1992 Constitution and relevant electoral laws, as of the date of the announcement of their candidacy (i.e., at least sixty days prior to the elections), a presidential candidate may not hold public office, including the office of the President, Attorney General, or army Commander-in-Chief or Chief of Staff. Accordingly, an incumbent president who runs for reelection is automatically suspended from office upon announcing his or her candidacy, and is replaced by the president of the National Assembly or, if the president of the assembly is also running for office, the next person in the order of succession. Interestingly, the electoral law additionally bans political office holders from launching new or inaugurating completed public projects close to elections. While incumbents have always been successfully reelected, the approach has allowed the country to hold consistently free and fair elections since multipartyism was first introduced in 1992. Cape Verde is ranked among the most democratic regimes in Africa and globally.

Madagascar also adopted a similar provision in its 1992 Constitution, whereby the incumbent was required to resign the day before the start of the elections campaign. The provision was pushed forward by the Council of Christian Churches of Madagascar which wished to constrain the dominance of incumbents, as exemplified by the then authoritarian President Didier Ratsiraka. Ratsiraka resigned before the campaign period, as provided in the new Constitution and lost the election. He returned to power in 1997 after winning the elections, and oversaw a constitutional reform which, among other reversals, removed the provision requiring incumbent resignation ahead of elections. Ratsiraka nevertheless lost a controversial election in 2001. The 2010 Constitution, which was adopted amid a complex political crisis, reinstated the rule, and requires incumbents seeking reelection to resign sixty days prior to the elections; the president of the Senate will take over during the transition, and in case he or she is also running, the cabinet will jointly govern as a transitional authority. Since 1992, only once has an incumbent won reelection in Madagascar—in 2006, when the resignation requirement was not applicable. The victorious president was subsequently controversially removed, following popular protests in 2009. In the most recent, 2018 presidential elections, the incumbent resigned as required, and came a distant third in the elections.

3. Studying innovations

Counterfactuals are always precarious, but having read the above discussion, one cannot help but wonder whether the electoral abuses we noted in the recent Belarussian, US, and Ugandan elections would have happened if the countries had had a rule similar to that in Madagascar or Cape Verde. Naturally, electoral malpractice would not disappear overnight. Free and fair elections, like muscles, require constant exercise and are usually a work in progress, even in established democracies. At the same time, Trump would not have been able to make those calls to state governors from a position of authority, while Museveni and Lukashenko would have found it more difficult to order extensive security crackdowns or rig the elections from outside their presidential palaces. While out of palace is not necessarily out of power, the impact of the formal absence of authority on the behavior of electoral and security officials should not be underestimated.

Nevertheless, the goal of this editorial is not to promote or defend the constitutional choices regarding a caretaker government. Rather, it simply aims to identify and explain an innovative approach in order to help level the electoral playing field. The purpose is to encourage scholars, constitutional advisers, and institutional supporters of national constitution-makers to more systematically identify and explore the origins, consequences, and potential utility of constitutional innovations outside the relevant countries. By drawing attention to a constitutional innovation in three countries from the “South,” the editorial also seeks to reiterate calls for a more expansive view of the world of comparative constitutional law. There is no doubt that the field is more advanced today than ever before, both in its engagement of related fields of study and in its geographic reach. Nevertheless, the direction of “migration” of constitutional ideas remains decidedly “North” to “South.” A more geographically balanced field of comparative constitutional law and practice would be a more enriched field.

Adem K. Abebe*

In this issue

The current issue of the International Journal of Constitutional Law opens with the I•CON: Debate! section. The debate is spurred by a first article authored by Gila Stopler. Stopler offers an explanation based on the feminist critique of structural and theoretical flaws within liberalism and argues that these flaws are used effectively by right-wing populism to endanger liberal democracy. The article is followed by a first reply by Marcela Prieto Rudolphy.She suggests that Stopler’s arguments can be read as suggesting that the flaw of Political Liberalism is not that it tolerates illiberal views, but that it tells us little about how to achieve and maintain an overlapping consensus about justice in today’s societies. A second reply, by Frank Michelman,argues that the problem’s root in liberalism runs deeper than any ideology related to a “private sphere,” and that this is aggravated by a turn in John Rawls’s defense of liberal principles from a “comprehensive” to a “political” justificatory strategy. David Dyzenhaus authors a third reply to Stopler’s article. He addresses the question of how to open up the personal within liberalism and, at the same time, protect it. He argues that the answer lies in the way the issue should be seen: not as the personal being political, but how the conception of the person we want to protect is political. A further reply to Gila Stopler is provided by Amy Baehr. She argues that the Okin/Rawls debate is a debate within ideal theory and that if ideal theory is the problem, Okin’s feminist critique of liberalism will not help. She adds, however, that Rawlsian ideal theory is more helpful than we might think in addressing the threat of illiberal populism to really-existing constitutional democracies. The last reply to Stopler, by Jan-Werner Müller welcomes her strategy of identifying structural weaknesses in liberal theory; whilst also expressing some disagreement, the most important being that, in his view, political liberalism can (and must) incorporate feminist concerns. The debate ends with Gila Stopler’s rejoinder, which addresses the main issues raised by the replies.

The Symposium section in this issue features two symposia. The first, organized by Rosalind Dixon and Michaela Hailbronner, collects a series of articles discussing the global legacy of Democracy and Distrust, John Hart Ely’s major work published in 1980. The Introduction by Dixon and Hailbronner explains the reasons for choosing Ely’s work and provides an overview of the symposium’s conclusions. Following the Introduction, various scholars engage in analyses of Ely’s influence and impact in selected jurisdictions outside of the United States. For the Commonwealth countries, Claudia Geiringer focuses on New Zealand; Rosalind Dixon and Amelia Loughland on Australia; James Fowkes on South Africa; Geoffrey Thomas Sigalet on Canada. Turning to European countries, Michaela Hailbronner examines the influence of Ely in Germany, not only to assess the reception of Ely’s work but also to analyze how, where and in what forms Elyian arguments surface there. Two articles consider Latin-American jurisdictions: Sergio Verdugo’s analysis focuses on Bolivia and Chile, Roberto Niembro Ortega’s on Mexico. In addition to country-specific analyses, Manuel José Cepeda Espinosa and David Landau further analyze the importance of Ely’s work on judicial review for politically dysfunctional or fragile democracies in danger of lapsing into authoritarianism.

The second symposium, organized by Talya Steiner, deals with the issue of rights protection in the making of counterterrorism legislation. After an Introduction by Steiner, the symposium includes three case studies related to national and international contexts. In the first case study, Lila Margalit provides an analysis ofrights in the enactment of Israeli counterterrorism legislation. In the second study, Andrej Lang discussesnon-judicial rights review of counterterrorism policies in Germany. The third case study, contributed by Fiona de Londres and Jasmin Tregidga, examines the interaction between rights, proportionality and legal and policy processes in EU   counterterrorism law-making .

Our Special Section features an article by Or Bassok on the exchange between Carl Schmitt and Josef Redlich, and discusses their positions on the issues of indeterminacy of legal norms and nihilism.

In the book review section, Aziz Huq examines three recent books by Applebaum, Ben-Ghiat and Keane dealing with the causes of democratic recession. He concludes that while they each shed light on various aspects of democratic recession, further analysis and research is necessary to provide a fuller comparative perspective and understanding of the phenomenon. This issue also features another round of our Editorial Board members’ recommendations for summer reading, this time with suggestions from Marian Ahumada, Richard Albert, Tom Ginsburg, and Wojciech Sadurski.  Finally, coming back to the theme of our Editorial in this issue on the gendered impact of COVID on the scholarship of those with caring responsibilities, a part of our review section is dedicated to books which address the role of women in public law from a range of different disciplinary and jurisdictional angles.  This section includes a review of recent scholarship by Gina Heathcote, Paula Monopoli, Julie C. Suk as well as Ruth Rubio Marín and Helen Irving.GdeB and JHHW


[i] See Kate Manne, Entitled 120-37 (2020).

[ii] See Meera Deo, Unequal Profession 87-8 (2019).

[iii] See https://www.cbsnews.com/news/covid-crisis-3-million-women-labor-force/.

[iv] See https://www.catalyst.org/research/women-in-the-workforce-global/.

[v] See https://www.thelily.com/71-of-dads-said-working-from-home-boosted-well-being-only-41-of-moms-agreed/.

[vi] See https://www.thelily.com/women-academics-seem-to-be-submitting-fewer-papers-during-coronavirus-never-seen-anything-like-it-says-one-editor/.

[vii] See https://www.insidehighered.com/news/2020/10/20/large-scale-study-backs-other-research-showing-relative-declines-womens-research.

[viii] Gráinne de Búrca, Michaela Hailbronner and Marcela Prieto Rudolphy, Editorial: Gender in Academic Publishing, 17 International Journal of Constitutional Law 1025 (2019) .

[ix] E.g., Sarah Nouwen and Joseph Weiler, Editorial: Peer Review – Institutional Hypocrisy and Author Ambivalence, 31 European Journal of International law 1187 (2021).

[x] Cassandra Guarino & Victor Borden, Faculty Service Loads and Gender: Are Women Taking Care of the Academic Family, 58 Res. in Higher Educ. 672 (2017).  See also https://www.insidehighered.com/news/2018/01/10/study-finds-female-professors-experience-more-work-demands-and-special-favor?fbclid=IwAR0mTYH_O8eOi5blSqO7joj1lvDX9bbv8xQQQjSZhUEPVbirs9n6PFfyCLg.

[xi] Nic Cheeseman, African Elections as Vehicles for Change, 21 J. Democracy 139 (2010).

[xii] Abdul Mannan Khan v. Bangladesh (Thirteenth Amendment Act Case), ADC Vol. IX (A) (2012).

[xiii] On the idea that changing critical cross-party constitutional pacts should require comparable levels of pacts to change, see Adem Abebe, The Vulnerability of Constitutional Pacts: Inclusive Majoritarianism as Protection Against Democratic Backsliding, Ann. Rev. Const. Building 2019, at 21 (2020), https://constitutionnet.org/sites/default/files/2021-01/annual-review-of-constitution-building-2019.pdf.

* I would like to thank Sumit Bisarya, Kimana Zulueta-Fuelscher, and Tom Ginsburg for their generous comments on an earlier draft.

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Published on August 7, 2021
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