Editorial: In this issue;
A note from the editors: On the use of AI in submissions to I•CON
On my way out—Advice to young scholars IX: Blurbs
In this issue
This year’s I•CON Foreword, written by Mila Versteeg, provides a rich and detailed overview of the field of empirical constitutional studies. Versteeg charts various methodological innovations and the rise of data-driven causal inquiries. She points to some of the major findings in the field, while also emphasizing the provisional and probabilistic character of these findings. Engaging with various key critiques of empirical legal studies, she calls for careful research design and mixed-methods approaches as a way to engage with these criticisms and move the field forward.
The Article section opens with a critique by Ankit Kaushik, Malak Sheth, and Manas Saxena of the assumptions underpinning judicial majoritarianism in the Indian Supreme Court. The authors call for a more theoretically grounded justification of the Court’s majoritarian decision-making, thereby initiating a broader discussion on the legitimacy of this practice. In her article, Vladislava Stoyanova examines how states invoke positive human rights obligations as a justification for infringing individual human rights before the European Court of Human Rights. She critiques the ECHR’s judgment in Vavřička and warns of a jurisprudential development that justifies state coercion with an appeal to their obligations to respect human rights. Aviram Shahal then revisits constitutional debates in Israel during the postwar period, showing how demographic concerns were central to Israel’s constitutional design. In the next article, Saskia Schäfer and Daniel Peterson examine how human rights discourses in Indonesia and Malaysia are appropriated and instrumentalized by religious activists. Thomas M. Keck provides a comparative analysis of free speech jurisprudence at the US Supreme Court and the European Court of Human Rights in light of the recent “weaponization” of First Amendment doctrine by conservative advocates and judges. Aileen Kavanagh examines the power of judges to strike down laws that violate the constitution, arguing that in practice such powers are exercised in a more timid and tentative manner than is often assumed. Finally, Moritz Baumgärtel points to the structural limits of human rights law in overcoming the civic stratification of migrants.
The issue also features a Focus section with two articles that consider the constitutional implications of the monetary measures of the European Central Bank. Claudia Wutscher cautions against the possibility of using the ECB’s secondary mandate to combat the climate crisis, pointing to the limits of the ECB’s mandate and the need for democratic decision-making. Stefan Griller revisits the conflict between the Court of Justice of the European Union and the German Federal Constitutional Court regarding the mandate of the ECB. He concludes that the CJEU had stronger arguments on its side, but that this will not prevent the conflict from resurfacing in the future.
JvdB
This issue features six book reviews that explore a wide range of constitutional themes across diverse jurisdictions, including investment treaties and constitutionalism, democratic polarization, the development of UK administrative law, referendums, decision-making rules in constitutional courts, and constitutional evolution. In his review of Constitutional Review and International Investment Law: Deference or Defiance?, Jonathan Bonnitcha highlights an important, unresolved question: the tension between investment treaties and the normative principles that ground liberal constitutional orders. András Jakab’s review of Constitutional Symmetry. Judging in a Divided Republic reminds us that constitutional hardball fuels polarization and accelerates the erosion of liberal democracy. Reviewing Administrative Law from 1550: Continuity and Change, Stefano Civitarese Matteucci shows how administrative law can continue to flourish by drawing on common law concepts. Mariana Canales, in her review of Referendums as Representative Democracy, underscores that authority is legitimate when people have reason to obey—namely, when it is exercised for the good of the community. Saul Levmore’s review of Supermajorities in Constitutional Courts urges a reconsideration of whether mere majorities can ensure that courts, and even electorates or legislatures, “get things right.” Finally, Dieter Grimm reviews The Story of Constitutions: Discovering the We in Us and suggests that the book is weakened by the author’s limited interest in how constitutions are applied, implemented, or interpreted.
CCL
A note from the editors: On the use of AI in submissions to I•CON
Like other journals in our field, I•CON is in the process of developing its policies on the use of AI in submissions to the journal. As a foundation for this process, we first hope to develop an accurate picture of how our contributors are using AI, by means of a questionnaire to be completed by prospective authors in connection with their submissions (this questionnaire will be made accessible through the ScholarOne submissions system). As we undertake this process, we also welcome your feedback—about the questionnaire, this process, and the possible policies that I•CON could adopt. Please write to icon@nyu.edu with your comments, questions, and suggestions.
GdeB and JHHW
On my way out—Advice to young scholars IX: Blurbs
I have, as is increasingly evident, reached the final phases of my academic and professional career, though it is a pretty long and winding way out…. Be that as it may, as I look back, I want to offer, for what it is worth, some do’s and don’ts on different topics for scholars in the early (and not so early) phases of their careers. This is the ninth instalment, and it is dedicated to the theme of blurbs found on back covers of law books.
We all know that blurbs that accompany new movies are worthless. A film review might say something like: “Mediocre movie that does not realize its potential, even though Jane Doe excels in her role.” The blurb you read in the movie publicity will read: “Jane Doe excels in her role” (NY Times).
What of blurbs that accompany novels? These may be one of two types: at times they may be found in the opening pages of a novel before you even get to the Table of Contents. Typically, these will be culled from serious book reviews and have substance—though I have often wondered what purpose they are meant to serve. Certainly not sales: you are already holding the book in your hands. My custom is to read them after I have finished the book, avoiding thus the risk of my own appreciation (or otherwise) being skewed by the opinions of others.
More regularly, and this is the second type: a very short blurb will be found on the back cover of the novel. It is invariably laudatory: the best thing since sliced bread. It is occasionally written by some celebratory author who you might even respect. Oftentimes, though, the author of the blurb is as anonymous as the author of the book being “blurbed”. Indeed, it is common in these cases for the “blurber” to have alongside his or her name an indication of the anonymous book they authored. The blurb serves to give publicity to the “blurber”! From the reader’s perspective it is an endearing case of the blind leading the blind.
Have you ever strolled into a bookstore (an endangered species) and decided to buy a book because of these blurbs? Even if it is written by someone you respect, it has scant value since the logic of the blurb industry is that it must always be laudatory. Do blurbs help sales? Typically, the blurbs migrate to Amazon and similar platforms, so I suppose the publishers might think that they do have an impact on sales; who am I challenge their wisdom and experience?
However, for quite a while now, you will also find blurbs on the back covers of law books. In this realm, I will need a lot of convincing by the publishers that they have any effect on sales. I do not believe that ever in my life have I bought a book (and as an old-fashioned unrepentant bibliophile, I still regularly buy books) based on these back-cover blurbs. Knowledge of the author, personal recommendations from colleagues, an interest in the subject and/or a serious book review in a learned journal are my prompts to order a book.
It might be, I am told by an industry insider, that the publisher hopes that these blurbs will influence the decision of a journal to review the book. My years as an Editor in Chief of I•CON and EJIL (including a stint as EJIL’s Book Review Editor) suggest otherwise. But if I am wrong and they do actually have an impact on book reviewing (or sales) it would be a sad statement on our discipline.
Why so?
How do these blurbs “happen”? If my experience is typical—and I believe it is—they originate in an email from a publisher (who got your name from the author) or directly from the author, asking you to write a blurb, usually accompanied by a PDF of the manuscript or, tellingly, by the Introduction to the book. Tellingly, because it is at times a subtle hint: you don’t even have to read the book. Almost invariably, the request comes from a colleague or friend, maybe a former student (sometimes all of the above) who you genuinely like and respect. It is very difficult, even impossible to say No.
Like and respect as the case may be, and often is, my heart sinks a bit. For one, it means that the book “jumps the queue” of my To Read pile of books. If I were to receive the book after publication, the author would always get a letter saying something like “looking forward to reading,” but typically, given the size of my To Read pile, it might be months. However, with a blurb deadline looming, I have to make space for it. Occasionally, it works out well. I recently was “forced” in this way to read a book for a blurb—and was actually grateful. I learnt a lot from the book, even became wiser. I might never have read the book but for the blurb request.
But the real trouble with blurb writing is different. You might actually not like the book, think it is mediocre or deficient. You might like it, but as is often the case, have a more nuanced view: you may see the virtues and the vices. In a book review, even a positive book review, one can bring out these nuances. But in a blurb? The genre is clear: whether the book is excellent, okay, mediocre or weak, the blurb has to be brief and wholly positive. Have you ever read a blurb that said: “Quite a good book”? How, then, is this different from the useless movie blurbs?
A blurb is even useless as an ego boosting device of the “Look at all the ‘important’ persons who think my book is wonderful” type, since everyone knows how this works. And it is hard for me to imagine that anyone who writes a blurb can seriously believe it will somehow burnish their reputation.
So what is the bottom line? Blurbs for law books are useless.
A while ago I warned early career scholars of the danger of accepting invitations to contribute to edited books—which frequently are neither truly edited nor, justifiably, read. I advised discernment. More categorically, I inveighed against Festschriften, Libri Amicorum and the like in another Editorial and advised my colleagues reaching the age in which this nefarious temptation raises its ugly head, simply to say “Thank you but No Thank you. I don’t want one.” Geriatrics of the World Unite!
When it comes to blurbs for law books, my advice to publishers is to abandon this silly practice, and since it is all but impossible to say No to a friend, my advice to authors is simple enough: Please don’t ask.
JHHW