The Original Theory of Constitutionalism

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No interpretive strategy succeeds in overcoming the dilemma of a constitution that at once embodies and prohibits democratic sovereignty

Inequality Rediscovered

Widespread recognition that economic inequality has been growing for forty years in most of the developed world, and in fact has tended to grow across most of the history of modern economies, shows that the period 1945-1973, when inequality of wealth and income shrank, was a marked anomaly in historical experience. At the time, however, the anomalous period of equality seemed to vindicate a long history of optimism about economic life: that growth would overcome meaningful scarcity and usher in an egalitarian and humanistic period that could almost qualify as post-economic. This has not been the experience of the last four decades. In this intellectual history of the anomalous period, we trace the main lines of that optimism and its undoing

Before Peer Production: Infrastructure Gaps and the Architecture of Openness in Synthetic Biology

Legal scholarship on intellectual property needs to be reoriented to consider how state action helps to generate the infrastructure of emerging fields in ways that prove conducive to their development. In this Article, I contribute to that reorientation through an in-depth analysis of one important emerging technology, synthetic biology. The ambition of synthetic biology is to make biology easier to engineer through standardization and associated technical processes. Early successes indicate the scientific promise of the field and help to explain why its advocates are concerned to see the field develop in an open and publicly beneficial manner. What openness might mean in the patent-dominated context of biotechnology remains unclear, however, and requires a reassessment of software’s “copyleft” concept that provided initial inspiration to the scientists and activists working on open synthetic biology. In this Article, I focus on the efforts of the BioBricks Foundation (BBF), the leading non-profit in synthetic biology, to promote the open development of the field. I explore the rationale behind the BBF’s decision to pursue a “public domain” strategy via a new legal agreement, the BioBrick™ Public Agreement

Empire\u27s Law

Most serious studies of globalization quickly derail into simple analyses of the immediately identifiable global institutions and actors, with little inquiry into the deeper interrelationships animating them. We associate globalization with increased trade, or broader cross-cultural contact, or perhaps with Americanization, but none of these fits precisely. What we lack is an analysis of globalization that inquires into the deeper currents transforming the contemporary world. In a provocative answer to that lack, Michael Hardt and Antonio Negri\u27s Empire constructs a sweeping, theoretically rich account of the nature of globalization. Hardt and Negri argue that we live in a new global hegemony, which they call Empire, a system of governing principles without bounds, neoliberalism ascendant. In calling the emerging global order Empire, they seek to evoke the world of ancient Rome rather than the European imperialist projects of recent centuries. Unlike those nation-based empires, our current world order more closely resembles the ancient empires, understood as moral and legal frameworks operative over an expansive, fluctuating territory. Similarly, Empire has no demarcated territory: it is characterized by a denial of limits, territorial or otherwise, to its expansion

The Laws of Capitalism (Book Review)

The past year has seen the surprising ascent of French economist Thomas Piketty to rock star status. The reading public\u27s appetite for his economic treatise seems motivated by a growing unease about economic inequality and an anxiety that the Great Recession, which followed the financial crisis of 2008, defines a new economic normal. The seemingly plutocratic response to the crisis has become the focus of angry attacks by protesters on both left and right, but their criticisms have had little practical effect, even while subsequent events have confirmed their fears. In 2010, the United States Supreme Court sealed the union of corporate money and politics in Citizens United v. FEC, which subsequent judgments have further entrenched. Meanwhile, the response to the crisis in Europe has suggested that Brussels now operates as an arm of finance capital and that monetary union is more likely to prove the undertaker of European social democracy than its savior

The Domestic Analogy Revisited: Hobbes on International Order

This Essay reexamines Thomas Hobbes\u27s understanding of international order. Hobbes defended the establishment of an all-powerful sovereign as the solution to interpersonal conflict, and he advanced an analogy between persons and states. Extending this domestic analogy, theorists following Hobbes have supposed that a global sovereign would prove the solution to interstate conflict. Yet Hobbes himself never proposed a global sovereign, which has led some scholars to diagnose an apparent inconsistency in his philosophy. This Essay seeks to resolve that inconsistency, drawing on Hobbes\u27s theory of the passions and his hope for radical political transformation. Hobbes believed that the solution to international disorder was not analogous but rather identical to the solution to domestic strife: both would be overcome through the establishment of a well-ordered commonwealth. Hobbes argued that a state capable of securing peace within its borders was unlikely to make aggressive war outside them. The radical transformation he envisaged in domestic politics would thus in itself mitigate and perhaps even overcome international conflict. This realist utopian position aligns Hobbes more closely with later social-contract theorists, including Jean-Jacques Rousseau, Immanuel Kant, and John Rawls. It also invites a reconsideration of the foundational principles of international law, with implications for contemporary problems from humanitarian intervention to economic integration. Hobbes\u27s realist-utopianism provides a needed corrective not only to the narrowly defined realism that has long claimed his imprimatur, but also to realism\u27s rivals, which unwittingly share its premises

Empire\u27s Law (Book Review)

Most serious studies of globalization quickly derail into simple analyses of the immediately identifiable global institutions and actors, with little inquiry into the deeper interrelationships animating them. We associate globalization with increased trade, or broader cross-cultural contact, or perhaps with Americanization, but none of these fits precisely. What we lack is an analysis of globalization that inquires into the deeper currents transforming the contemporary world

Closing Remarks: Law and Inequality after the Crisis

I am honored to have been asked to give the closing remarks to what hasbeen an inspiring and insightful conference, and humbled to do so before so many respected friends and colleagues. I think my most important duty before doing so is to thank the truly amaz­ing students who conceived of and executed this conference from start to finish: Brian Highsmith, Lina Khan, Urja Mittal, and Jake Struebing, and also all of the student moderators too. I also want to thank all the marvelous panelists who traveled from far and near to be here with us. It has meant so much for us to have you share your thinking and research on these urgent questions. And a particular thank you to those who gave the keynote and lunchtime addresses-Vanita Gupta, Zephyr Teachout, Justice Goodwin Liu, and Daniel Markovits