Rethinking Enmeshment and the Rule of Law in Authoritarian Contexts

Scholars frequently cite Turkey under Recep Tayyip Erdoğan’s rule among the leading examples of populism and authoritarianism in contemporary politics. Long an authoritarian regime, Turkey has in indeed evolved into a full-blown autocratic regime engaged in serious human rights violations and systemic rule of law violations. What makes this case particularly striking, however, is that this backsliding has occurred under the watch of European institutions. Claiming that the Turkish case speaks to broader issues concerning the ways in which transnational human rights and rule of law organizations interact with authoritarian regimes, this article puts forth theoretical insights for the rule of law scholarship. Going beyond conventional analyses which characterize interactions between international institutions and nation states as one-way relationships where norms flow (or not) from the top-down, it looks into the “enmeshment” of domestic and international law in authoritarian settings described in the introductory article of this special issue. Doing so, however, the article does not solely ask whether and how human rights norms are applied in authoritarian contexts, but also looks into how international organizations tasked with upholding the rule of law can not only permit illiberal states to violate those norms, but also themselves undermine these principles. Conceptually, the article illustrates that the rule of law-rule by law spectrum fails to account for authoritarian contexts, where states go beyond rule by law to engage in legal repression and resort to lawlessness towards certain (racialized) segments of the population. Thus, it argues, if the rule of law is at one end of the analytical spectrum on the arbitrary exercise of power, what lies at the other end is lawless rule, not rule by law, and the dual state lies somewhere in between. Empirically, the article analyzes Turkey’s decades-long relationship with the European Union and in particular the European Court of Human Rights (ECtHR). It zooms in on the latter’s case law concerning Erdoğan’s resort to the law to consolidate his power (rule by law) and utter disregard of legal rules, including domestic ones, in repressing democratic dissent and engaging in state violence (lawlessness). Methodologically, to display and contest conventional scholarship’s depiction of the ECtHR as a supranational court exercising strict scrutiny of authoritarian regimes, the article goes beyond judgments, which constitute a mere 9 percent of jurisprudence, and takes a close look at inadmissibility decisions and strike-out rulings concerning Turkey’s resort to rule by law and lawlessness

Dan Burk

Dan Burk at the First Annual Celebration of Books, Spring 2010.https://scholarship.law.uci.edu/celebration_of_books_2010_photos/1005/thumbnail.jp

Gregory Shaffer

Gregory Shaffer at the Sixth Annual Celebration of Books, March 19, 2015.https://scholarship.law.uci.edu/celebration_of_books_2015_photos/1011/thumbnail.jp

Digitizing The Warranty of Habitability

The warranty of habitability was touted fifty years ago as a gamechanger in rebalancing power between tenants and landlords. Under the warranty, a residential tenant’s duty to pay rent is conditioned on a landlord’s obligation to make repairs. Scholars who have studied the warranty of habitability have focused on its defensive use, primarily when a tenant is already in eviction proceedings. Consensus has emerged that the warranty as a defensive shield has failed to deliver meaningful benefits to tenants living in poor housing conditions. This Article explores whether an affirmative use of the warranty, coupled with a new technology and community organizing approach, can improve tenant outcomes. Specifically, the authors designed, built, and implemented a novel tool available for tenants to bring pro se actions for money damages in small claims courts for breaches of the warranty of habitability. The Warranty of Habitability Abatement of Rent Mathematical Calculator (“H.A.R.M. Calculator”) is an efficiency application that allows law students and attorney volunteers to assist tenants in preparing small claims court pleadings. Tenants then file their complaints and, when successful, obtain judgments for money damages against their current or former landlords. This Article contributes to the poverty law, housing law, and legal technology literatures by focusing on the warranty of habitability in a new way. An affirmative, tenant-centered remedy has the possibility of shifting power dynamics between tenants and landlords. Through initial data collected, the authors have developed working hypotheses that the tool will test through future research

Search and Seizure Budgets

This Article proposes a new means of restraining police power: quantitative limits on the number of law enforcement intrusions—searches and seizures—that may occur over a given period of time. Like monetary constraints, search and seizure budgets would aim to curb abusive policing and improve democratic oversight. But unlike their monetary counterparts, budgets would be indexed directly to the specific police activities that most enable escalation and abuse. What is more, budgets are a tool that finds support, conceptually, in the American framing experience. The Fourth Amendment has long been understood to require procedural limits, such as probable cause, on specific police intrusions. But such requirements are only part of the story; limits on overall police capacity, we argue, are also hardwired into the Fourth Amendment via its founding era history. Search and seizure budgets would help reinvigorate that promise, offering an important tool in the ongoing effort to curb over-criminalization and the ever-expanding technologies of surveillance

An Immigration Law for Abolitionists (and Reactionaries)

Immigration law gets most things wrong and satisfies no one—not immigrants, not moderates, not restrictionists, and not abolitionists (the #AbolishICE crowd). It is bad law premised on skewed epistemic inputs—the fantasies of U.S. citizens—and enforced by a national agency with bloated resources tasked with solving a problem (illegal immigration) that causes no material harm. Migration law’s biggest failing is that it admits far fewer immigrants than our country has the capacity to take in, as the decades-long, peaceful, and productive presence of twelve million undocumented immigrants definitively proves. The bankruptcy of immigration law has been obvious for a few decades at least, yet comprehensive immigration reform has been impossible to enact over the same time frame. Now, with the death of the most promising legislative reform effort in a generation at the hands of the unelected Senate parliamentarian, it’s past time for a reassessment of immigration law and the ends and strategy of immigration reform. In this Article, I argue that the reasons for the impasse on reform are structural and require a structural overhaul: a reconstruction of immigration law that destroys one-size-fitsall, national control and places chunks of the immigration power back in local precincts in metro areas, counties, or towns. This decentralized approach can increase our immigrant carrying capacity by allowing places that want and need immigrants to invite and attend to as many as they like. With time, some pro-immigrant locales might even cultivate an abolitionist, open-borders immigration politics from the bottom up. It wouldn’t be the first time. The abolition of slavery and the gay rights movements were both nurtured in sub-national jurisdictions with special cultures and characteristics. Only after consciousness raising and proof of concept were secured were these radically new norms and modes of being scaled up. A local immigration law may also better sate the needs of American reactionaries. Social scientists teach that many of us are dyed-in-the-wool authoritarians triggered by social and racial pluralism. This personality type can only be soothed with a restoration of a sense of “oneness or sameness.” Locating debates about racial and social pluralism—i.e., the immigration debate—at the national level constantly and unnecessarily triggers authoritarians. Many authoritarians live in places that are racially and socially homogenous. A more local immigration power would allow this group to sate their thirst for homogeneity without imperiling the benefits of immigration for the rest of us: the majority of Americans that enjoy and thrive in a pluralist, multiracial order

03. What Would Chemerinsky Do?

The UCI Law Class of 2016 created a What Would Chemerinsky Do? shirt celebrating then Dean Erwin Chemerinsky.https://scholarship.law.uci.edu/uci_law_stories_images_chemerinsky/1007/thumbnail.jp

Christopher Tomlins

Chris Tomlins at the Second Annual Celebration of Books, April 21, 2011.https://scholarship.law.uci.edu/celebration_of_books_2011_photos/1001/thumbnail.jp

Retail Mergers, Markets, and the Rise of Amazon

The retail industry has endured a variety of changes throughout the last two decades. One major disruption in this industry has been the rise of internet retailers like Amazon that have pushed traditional brick-and-mortar retailers to either adapt in order to compete, or risk a slow and painful retail death. Antitrust law should take into account the realities of the retail industry and with whom large brick-and-mortar retailers are actually competing against. One avenue that antitrust law can use to take this reality into account is in its approach towards reviewing retail mergers. An important part of assessing whether a merger will have an anti-competitive effect on a specific geographic market involves determining which retailers are included in that geographic market to begin with. This Note argues federal courts and the Federal Trade Commission (FTC) should include Amazon as a competitor when assessing the geographic market for major brick-and-mortar retailers like Walmart, Target, Staples, and Best Buy. As of November 2021, federal courts have not had a chance to substantively consider whether Amazon should be included in the geographic market for large brick-and-mortar retail mergers. To the extent that courts have tangentially touched the issue, it appears courts have been hesitant to include internet retailers in the same geographic market as brick-and-mortar retailers. The FTC, on the other hand, has had a mixed response to Amazon and internet retailers. Inevitably, major brick-and-mortar retail mergers will occur, such as the recently attempted Staples/Office Depot merger, which will require consideration by the FTC and, in some cases, federal courts. When these mergers occur, Amazon should be considered a competitor when the merging retailers’ pricing and non-pricing conduct indicates that they consider Amazon a competitor