Global Constitutionalism 2020: Seeking Safety, Knowledge, and Security in a Troubling Environment

Judith Resnik (ed)

Global Constitutionalism Seminar E-Book Series

Abstract for Complete Volume 

The 2020 Yale Global Constitutionalism volume, Seeking Safety, Knowledge, and Security in a Troubling Environment, captures some of the complexities of these times. As the materials were underway, a global health crisis exploded, the fragility of the climate became increasingly vivid, and instances of racist state violence were recorded on video feeds that circled the world. These chapters analyze new and ongoing challenges in several domains—virtual, ecological, economic, and private—as courts are asked to grapple with deteriorating climates, gendered violence, new reproductive technologies, the viral spread of misinformation, and other courts’ decisions on complex issues. The questions that remain constant across these domains are whether constitutional norms apply to the conflicts among individuals, organizations, and the state, and whether and how judiciaries can respond and offer remedies.  

Co-edited by Miguel Maduro and Robert Post, the Chapter Misinformation and Technology: Rights and Regulation Across Borders explores the question of whether the internet poses distinctive questions for constitutional courts when they are called upon to consider the regulation of the exchange of information. Women, Gendered Violence, and the Construction of the “Domestic,” co-edited by Susanne Baer, Marta Cartabia, and Judith Resnik, asks how constitutional law responds to violence targeted at individuals because of their identity. Questions of state obligations are also central in the Chapter Courts, Climate Change, and the Global Pact for the Environment, co-edited by Laurent Fabius, Daniel Esty, and Douglas Kysar, which explores courts’ responses to the injuries of climate change. Surrogacy, Autonomy, and Equality, co-edited by Daphne Barak-Erez, Douglas NeJaime, and Reva Siegel, considers how decisions about the regulation of reproduction through the involvement of third parties implicate constitutional guarantees and human rights. Two additional sets of materials responded to events of the first half of 2020. One segment, Functioning: Courts in the Pandemic, sketched some of the temporary, emergency orders issued by courts to enable their work to continue while many countries required shuttering public activities. Another segment, Multi-Layered Governance, Interaction Among Courts, and the Economy: The Exchanges Between the FCC and the ECJ, used differences between the German Federal Constitutional Court and the European Court of Justice about measures taken by the European Central Bank to explore coordination and conflict among courts.  

Misinformation and Technology: Rights and Regulation Across Borders 

Authors: Miguel Maduro and Robert Post 

The “virtual” public sphere has taken on unprecedented importance, exposing a variety of legal questions regarding the governance of the internet and its relationship to democracy and freedom of speech. This Chapter begins with reflections on the traditional public sphere and its evolution into a virtual phenomenon. Virality, interactivity, and zero marginal information costs have exacerbated traditional issues with fake news. The algorithmic distribution of information has distorted public deliberation. The interaction between national and international public spheres has never been so seamless, leading to unprecedented issues in the governance of national communication environments. The Chapter examines legislative and judicial responses to these new challenges. 

Women, Gendered Violence, and the Construction of the “Domestic” 

Authors: Susanne Baer, Marta Cartabia, and Judith Resnik 

This Chapter begins with an examination of the centuries-long assumption that gender-based violence was a “private” issue meant that legislatures, law enforcement agencies, and courts were unresponsive. It then maps how social movements and critical lawyering reframed gendered violence as one form of subordination that is in fact a marker of inequality and provides examples of national and transnational law that debate the bases, contours, and implications of rights to be free from such oppression. Having explored what affirmative obligations governments have toward their own populations to protect against gendered violence, this Chapter considers whether international refugee law, humanitarian law, and jurisdictions’ own constitutional law require offering a haven for people escaping gendered violence. Across the world, many courts have read constitutions to require that law aim to provide protection against and safety from gendered violence. Such mandates for an active state presence (often through criminalization) contrast with traditional approaches in which courts have insisted that law not interfere when acts are marked as private, intimate, or domestic. This Chapter explores the demands on the state and the repertoire of remedies deployed when governments work towards achieving substantive equality.  

Courts, Climate Change, and the Global Pact for the Environment 

Authors: Daniel Esty, Laurent Fabius, and Douglas Kysar 

This Chapter continues conversations begun at the 2019 Global Constitutionalism Seminar (see Litigating Climate Change). Awareness of the precarious state of our world has become all the more acute. The materials begin with debates about what role courts play, a question that intersects with what remedies they could or should provide in response to climate change. The Chapter then turns to issues of knowledge about and accountability for current and future environmental harms. The issues are how courts determine what information governments and corporations must make public as well as who has the right to access that information and require disclosure. Recognizing that global problems often inspire calls for global solutions, the Chapter ends with an examination of efforts to constitute a Global Pact for the Environment. The 2015 Paris Climate Change Agreement established an array of policy goals and nationally determined contributions (NDCs) on the part of the 180 signatory nations. In 2020, environmental experts and national governments are hoping to build upon this foundation to shape broader commitments to a sustainable future with a Global Pact for the Environment.  

Surrogacy, Autonomy, and Equality 

Authors: Daphne Barak-Erez, Reva Siegel, and Douglas NeJaime 

As surrogacy becomes widespread, it may call for new forms of judicial response. This Chapter surveys the different ways that surrogacy is practiced across borders, and the different ways the practice has been criticized and valued. After considering some of these debates (does surrogacy exploit and commodify women or empower them to pursue their own autonomous life ends?), the Chapter then turns to critical issues surrounding surrogacy legislation. It examines the ability of individuals, including unmarried and LGBTQ individuals, to access surrogacy for family formation. And it addresses the interests of individuals serving as surrogates, including questions of compensation and decision-making during pregnancy. Finally, the Chapter examines questions of parental recognition, implicating the constitutional interests of the intended parents, the person serving as the surrogate, and the child. By exploring how courts, legislatures, and human rights tribunals have addressed surrogacy transnationally, the Chapter shows that the meanings and implications of surrogacy vary across contexts and depend on how the practice is structured and regulated.   

Functioning: Courts in the Pandemic  

In 2020, “sheltering at home” required courts to reorganize their own work as they also faced a myriad of legal questions about the responses of other institutions to COVID-19. The various accommodations made in light of COVID-19 have raised questions about how courts can be loyal to values of access, transparency, and even-handedness, as well as be just and fair, when in-person exchanges become unavailable and the physical courthouse doors are “closed.” This Chapter focuses on how judiciaries coped during the first months of the pandemic. It provides a brief sampling of materials around what adjustments were made and whether and how those measures made the work less “court-like” or altered what we take to be “court-like.” Unlike other chapters in which readings are compiled and excerpted, this narrative account describes a few examples of the adjustments that courts issued as countries shut down and reopened. The materials referenced were not reprinted for participants and are not provided here.  

Multi-Layered Governance, Interaction Among Courts, and the Economy: The Exchanges Between the FCC and the ECJ  

This Chapter, prompted by a May 2020 German Federal Constitutional Court (FCC) decision, engages with issues around the authority of the EU, federations, transnational policies, the allocation of powers in multi-layered systems, proportionality review, and competences. One set of questions is the effect of the decision on independent banks, the European Central Bank, and European economic integration, and in particular, the ability of central banks to respond expansively to economic emergencies. The decision also raises questions about how courts define and then navigate multilevel governance systems when competences cannot be separated but are assigned across multiple levels. In addition, questions have emerged about whether and how broader political contexts should affect courts and, in this instance, the timing and tone of the FCC’s decision. This Chapter provides a brief synopsis of the FCC’s May 2020 judgment and compiles a list of materials relevant to the decision—the referenced materials are not included here. 

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