Paul Linden-Retek (University at Buffalo Law School) has posted An Implicated Public: The Authority and Scope of Law in Uncertain Times (Indiana Journal of Global Legal Studies, forthcoming) on SSRN. Here is the abstract:
In conversation with theories of judicial review, jurisdiction, and of the legitimacy of the judicial role in democratic society, this essay offers a first sketch of a theory of judicial voice in a troubled and uncertain world. It does so by centering the concept of implication, drawn from its recent revival in political theory, which Michael Rothberg describes as the ‘manifold indirect, structural, and collective forms of agency that enable injury, exploitation, and domination but that frequently remain in the shadows’. Implication—as a structural and relational account of responsibility for harm—poses a particularly difficult challenge for the legitimacy of democratic self-government: it casts critical, introspective light on who, exactly, the subject of shared political life is; and thus throws open foundational questions of the legitimacy of state power and of the subjects of the rule of law.
In considering implication as a vital contemporary ethical demand, this essay argues for the distinct and special role that law, courts, and legal judgment play in vindicating it—perhaps uniquely so among other public institutions. This assertion is in a number of ways counterintuitive. First, implication questions the identity of the collective subject that would authorize, as a constitutional matter, an institution of judicial review as trustee of its essential commitments. Second, implication challenges and exceeds conventional conceptions of causation, attribution, and liability in which courts are long trained and familiar. But given the forms of entanglement and harm contemporary societies participate in and endure, my claim is that implication is and must increasingly be of concern to formal adjudication.
I trace the turns of this argument by examining jurisprudential developments in the concept and scope of jurisdiction in regional and supranational courts–notably in how the European Court of Human Rights, often in distinction to its inter-American counterpart, has recently parsed cases of trans-boundary harm about which it can speak and rule and those about which it must remain silent. I consider, in particular, cases considering the territorial scope of ECHR protection for harms emanating from the externalization of border control and complex agreements on extraterritorial migration management. Seeing such cases as essentially about the degree to which the public is asked to understand itself implicated in structural and relational wrongs, I ask what we learn from such cases about the judicial role, ways to conceive jurisdictional mandates, and the aspirations of legal reasoning and its form. This argument, in the end, supports the authority of law and legal institutions in accounts of contemporary governance, often against those, from many corners of the political spectrum, who advise their marginalization.