The phrase "ditching a president" invokes three themes of constitutional design that I have explored in recent work with co-authors: how to ensure that a president does not overstay her term;1 how to ...remove a president who has committed wrongdoing;2 and how to keep a bad president from returning to office.3 All of these challenges have been prevalent in the long constitutional history of Latin America, where the basic problematique has been the constraint of powerful executives.4 In this Article, I want to explore a dimension that has been only minimally considered in the literature on comparative constitutional law, but that interacts with all of the above challenges. ...one argument that is sometimes invoked for a constitutional term limit is that it will encourage political leaders to find and designate successors.5 Term limits, and successful designation of a successor, shifts the focus of politics away from personalities and toward parties and policies. ...if problems of succession can be resolved, there is no need to "ditch" anybody. The main scholars in comparative constitutional law to grapple with successors are Mila Versteeg and colleagues in their examination of term limit evasions.6 They identify what they call a "faithful agent" as a mechanism for evading term limits and identify five cases since 2000 in which this strategy was attempted.7 They find that three of incumbents who deployed this strategy did not succeed. ...the phenomenon is ubiquitous. With this cryptic reference, I lay before you the case of Dominican Republic dictator Rafael Trujillo, who ruled his country from 1930-61.8 Trujillo was commander of the national police and army when a rebellion broke out in 1930.9 Having secretly colluded with the rebels, he allowed them to take over on condition that Trujillo be allowed to run for president in the first elections.10 He soon sidelined the rebel leaders and won an election in which the U.S. Ambassador reported that there were more votes cast than actual voters.11 From then on, he dominated the country, deploying torture and assassination against his opponents.12 The Dominican Republic Constitution of 1929, like many in the region, had a limit of two presidential terms.13 In 1938, near the end of his second term, Trujillo "refused to run," despite asserting that he had popular support.14 He cited the unwritten American practice of limiting the presidency to two terms.15 His Vice-President, Jacinto Peynado, ran instead and won office.16 But after President Roosevelt ran for and won a third term in 1940, Trujillo followed suit and reassumed the presidency in 1942 for two more terms, the length of which was extended to five years in a constitutional reform.17 In 1952, he again stepped down in favor of his brother Hector.18 Hector duly served for two terms before resigning so that Rafael could return in I960.19 Rafael was assassinated the next year, ending what is known as El Trujillato.20 (Hector lived to a ripe old age of 94, dying peacefully in Miami in 2002).21 Contrast the Dominican Republic with Ecuador.
Democracies have traditionally played a very important role in the construction and operation of international law, but this role has come under some pressure with the wave of democratic erosion that ...began around 2006. In a book published last year, the author laid out an argument that in some cases, international law could help to bolster democracy around the world, but that role was under threat from rising authoritarianism. This Essay considers relevant developments, finding cause for optimism in Latin America, some cause for pessimism in Africa, and real risks in Europe. Cyber governance is going to be a critical terrain. Democracy's road ahead is likely to be fraught, but the basic stance of cautious optimism is still appropriate.
The rule of law era has given rise to multiple indicators purporting to measure the concept. This article compares four major indicators of the rule of law and shows that their approaches to ...conceptualization and measurement differ. Given their disparate conceptualizations and measurement strategies, one might expect a weak correlation between them. Strikingly, however, all four indicators are highly correlated with each other (with the pair-wise correlations between three of them exceeding 0.95). They are also correlated with the widely used measure of corruption. This suggests that the indicators might capture a more encompassing concept, like impartial administration. The article critiques the rule of law measurement enterprise as insufficiently linked to the underlying normative concept. It points to the reliance on expert perceptions and information constraints as a possible cause for the convergence. It concludes that measurement strategy, rather than differences in conceptualization, explains the convergence between the indicators.
ABSTRACT Roberto Gargarella has always placed distribution of access to political and economic power at the center of the analysis. This article focuses on his argument that participation might be ...able to improve material inequality. It argues that inequality can be confronted directly or indirectly, and that sometimes, participation is not the best mechanism for addressing inequality. The article draws on case studies from Japan and the Philippines to illustrate its argument.
Our era is one of democratic backsliding. International courts and institutions have provided some bulwark against this trend, but we are now witnessing leaders seeking to use international law to ...extend their power. Courts in several countries have relied on international human rights norms to facilitate term limit extensions by leaders seeking to retain power beyond what is constitutionally allowed. This Article documents these cases and calls for a more robust and substantive international law of democracy-protection.
Roberto Gargarella siempre ha colocado la distribución del acceso al poder político y económico en el centro del análisis. Este artículo se centra en su argumento de que la participación podría ...mejorar la desigualdad material. Sostiene que la desigualdad puede ser enfrentada directa o indirectamente y que, a veces, la participación no es el mejor mecanismo para abordar la desigualdad. El artículo utiliza estudios de caso sobre Japón y Filipinas para ilustrar su argumento. PALABRAS CLAVE América Latina, constituciones, derecho constitucional comparado, participación, Japón, Filipinas. Roberto Gargarella has always placed distribution of access to political and economic power at the center of the analysis. This article focuses on his argument that participation might be able to improve material inequality. It argues that inequality can be confronted directly or indirectly, and that sometimes, participation is not the best mechanism for addressing inequality. The article draws on case studies from Japan and the Philippines to illustrate its argument. KEYWORDS Latin America, constitutions, comparative constitutional law, participation, Japan, Philippines.
In his 2017 Charles N. Brower Lecture on International Dispute Resolution at the Annual Meeting of the American Society of International Law, David Caron considered the role of international ...adjudicators in dealing with the various social functions that are implicated by courts. Drawing on ideas associated with Martin Shapiro, he noted a fundamental distinction between the functions of courts--which scholars have characterized as including lawmaking, social control, legitimation, and regime construction, among many others--and the task of adjudicators, whose core job is resolving the dispute before them on the basis of the relevant law. Caron's paradigm was a classical one of which he was fond, and the world he inhabited was the classic international law domain of interstate dispute resolution. Like Judge Thomas Buergenthal, David critiqued dicta in which the International Court of Justice expressed its sympathy for human rights victims, and urged the court to focus on the immediate legal task at hand.
The recent wave of behavioral economics has led some theorists to advocate the possibility of "libertarian paternalism," in which regulators designing institutions permit significant individual ...choice but nonetheless use default rules to "nudge" cognitively biased individuals toward particular salutary choices. In this Article, we add the possibility of a different kind of nudge: temporary law.
This paper analyzes the rapid increase in civil litigation in Japan during the 1990s in light of existing theories of Japanese litigiousness. Using a unique set of prefecture‐level data, it ...demonstrates that the 1990s increase in litigation is best attributed to two factors: the expansion in institutional capacity for litigation traced to procedural reforms and an expansion in the bar, and structural changes in the Japanese economy related to the postbubble slowdown in growth. The paper contributes to three literatures. First, it builds on earlier institutionally oriented research on civil litigation in Japan by John Haley and Mark Ramseyer by providing new data and detail about the institutional barriers to litigation. Second, it contributes to the literature on the relationship between economic change and litigation more generally. Finally, it contributes to the empirical and comparative literature on litigation rates by providing evidence about the determinants of litigation in one country.
In recent decades, there has been a wide-ranging global movement towards constitutional review. This development poses important puzzles of political economy: Why would self-interested governments ...willingly constrain themselves by constitutional means? What explains the global shift toward judicial supremacy? Though different theories have been proposed, none have been systematically tested against each other using quantitative empirical methods. In this article, we utilize a unique new dataset on constitutional review for 204 countries for the period 1781-2011 to test various theories that explain the adoption of constitutional review. Using a fixed-effects spatial lag model, we find substantial evidence that the adoption of constitutional review is driven by domestic electoral politics. By contrast, we find no general evidence that constitutional review adoption results from ideational factors, federalism, or international norm diffusion.
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