Governing Democracy Outside the Law: India's Election Commission and the Challenge of Accountability

Comparative law and politics literature widely recognizes the role of election management bodies (EMBs) in securing the well-being of constitutional democracies. Scholars have noted the political desirability of both independence and accountability of these institutions. But striking balance between these two values is easier said than done. This Article highlights the dilemma of accountability by focusing on India's Election Commission (ECI) as a paradigmatic version of a powerful EMB. Scholars of Indian politics have long noted the institution's widening powers – often beyond the original constitutional intent or parliamentary legislation – over the last few decades. This, they argue, has impaired its institutional accountability. This Article adopts a fresh perspective on the ECI's expansive functions, and the attendant concerns these raise. It argues that the ECI regulates the electoral process not through what we may ordinarily identify as the law. The most compelling and consequential of its functions are through extra-legal modalities of regulation. Drawing from recent scholarship on regulation, the Article argues that the ECI shapes the electoral environment and behaviour through non-legal modalities of architecture, nudge and notice-based regulations. Much like the other fields where they are deployed, these extra-legal modalities exhibit unique, and in many ways, inherent limitations with respect to transparency. It is thus this character of the ECI's functions – rather than only their widening breadth – that poses the most significant challenge for democratic accountability. Based on this assessment, the Article notes that for powerful EMBs like the ECI, accountability in the form of on-going operational accountability is inherently limited in compelling ways. This increases the stakes for accountability of these institutions through other means, particularly by securing their constitution, composition and tenure.

US move against Israeli firm will not slow spyware use

Significance Reports about this spyware’s widespread use to target activists and critics have tarnished the company, which on November 3 was blacklisted by US President Joe Biden’s administration. This prohibits US entities from purchasing NSO Group products. Impacts Calls for regulatory reform to limit the development, use and export of spyware capabilities will increase in Western countries The private sector in Israel and elsewhere will continue to play a major role in the development of the lucrative global spyware market. Autocratic regimes and states with weak democratic accountability will actively use spyware as more business shifts online.

Democracy, Development and Industrial Policy in Nigeria

The article places Nigeria’s political and economic challenges in historical and global context. As opposed to viewing democracy or development emerging simply as the ‘will of the people’ or ‘political will’, it encourages a historical and structural view of the phenomena. Sustained democratic institutions and intensive economic growth emerge under particular conditions where the continued maintenance of hegemony and gate-keeping extractive states are no longer viable. A diversified capitalist class and economic power among a strong middle class are needed to demand greater democratic accountability. Industrial policy is essential to creating the structural change required for their emergence. Yet the dispersed and ethno-religiously fragmented distribution of power makes industrial policy implementation difficult. Given the salience of such historical and structural forces, postcolonial Nigerians should be seen as formative generations. Students and practitioners of development economics, policy and politics should be more creative in producing politically informed policies for the country.

The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU’s Weiss Ruling and the German Federal Constitutional Court’s PSPP Ruling

The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (“BVG”) amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.

Global administrative law: The Basel Committee revisited

<p>Global Administrative Law is the branch of Global Governance that seeks to provide guidance and structures for decision‐making bodies and international organisations that rely on co‐operation between a range of international actors to achieve various objectives or implement policy agendas. In 2006, Michael S. Barr and Geoffrey P. Miller critically analysed the Basel Committee on Banking Supervision. Their article Global Administrative Law: The View from Basel sought to dispel the critiques that international‐law making processes lacked democratic accountability and oversight by offering the Basel Committee’s own processes as a model for international law‐making with greater accountability and legitimacy. This article examines the Basel Committee since Barr and Miller’s 2006 article, in light of the global financial crisis and the development of ‘Basel III’. It will seek to determine whether the processes described by Barr and Miller proved to be effective, and if Global Administrative Legal theory is appropriately applied to the Basel Committee. Finally, the article will ask whether the Basel Committee still serves as a model for international law‐making with greater accountability and legitimacy, or if more work is needed to fulfill this model.</p>

Global administrative law: The Basel Committee revisited

<p>Global Administrative Law is the branch of Global Governance that seeks to provide guidance and structures for decision‐making bodies and international organisations that rely on co‐operation between a range of international actors to achieve various objectives or implement policy agendas. In 2006, Michael S. Barr and Geoffrey P. Miller critically analysed the Basel Committee on Banking Supervision. Their article Global Administrative Law: The View from Basel sought to dispel the critiques that international‐law making processes lacked democratic accountability and oversight by offering the Basel Committee’s own processes as a model for international law‐making with greater accountability and legitimacy. This article examines the Basel Committee since Barr and Miller’s 2006 article, in light of the global financial crisis and the development of ‘Basel III’. It will seek to determine whether the processes described by Barr and Miller proved to be effective, and if Global Administrative Legal theory is appropriately applied to the Basel Committee. Finally, the article will ask whether the Basel Committee still serves as a model for international law‐making with greater accountability and legitimacy, or if more work is needed to fulfill this model.</p>

Motivated Reasoning and Democratic Accountability

Does motivated reasoning harm democratic accountability? Substantial evidence from political behavior research indicates that voters have “directional motives” beyond accuracy, which is often taken as evidence that they are ill equipped to hold politicians accountable. We develop a model of electoral accountability with voters as motivated reasoners. Directional motives have two effects: (1) divergence—voters with different preferences hold different beliefs, and (2) desensitization—the relationship between incumbent performance and voter beliefs is weakened. While motivated reasoning does harm accountability, this is generally driven by desensitized voters rather than polarized partisans with politically motivated divergent beliefs. We also analyze the relationship between government performance and vote shares, showing that while motivated reasoning always weakens this relationship, we cannot infer that accountability is also harmed. Finally, we show that our model can be mapped to standard models in which voters are fully Bayesian but have different preferences or information.

Political Purposes, Anti-entrenchment and Judicial Protection of the Democratic Process

The legality of decisions made for political purposes is a recurring issue in administrative law. In this article, it will be argued that generalisations should not be made about ‘political’ decisions as a single category. Instead, there are different types of political consideration, which raise different issues when assessing the legality of a decision. This article singles out a particular type of political decision for condemnation: decisions made to gain a political advantage by deliberately changing the systems of democratic accountability. Examples include the engineering of the electoral system to produce favourable results, the use of public power to punish critics and the use of public resources to publish partisan propaganda. The article will argue that the legality of such political decisions should not be assessed solely within the ordinary administrative law framework, but under a constitutional principle of anti-entrenchment and process protection.