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Engaging with Abdullahi An-Na\u27im\u27s Philosophy on Islam and Human Rights
Get PDFAbdullahi Ahmed An-Na‘im is one of the leading scholars and contributors on the subject of Islam and human rights. In fact, he remains one of the most cited authorities in the subject area. His contributions on the subject span more than three decades during which he has engaged with almost every topical issue on the subject. He has been described as one of the non-Western jurists from “the South” “who ha[s] made substantial contributions to the theory and practice of human rights” generally.
There can be little doubt that Abdullahi An-Na‘im has been one of the most influential voices on the issue of Islam and Human Rights
The Making of a Muslim Democratic Party: Ennahda\u27s Rebranding and An-Na\u27im\u27s Secular State Framework
Get PDFAt its Tenth National Party Conference in 2016, Tunisia’s Ennahda Party announced that it would be formally rejecting the label “political Islam” and rebranding itself as a party of “Muslim democrats.” As part of this new identity, Ennahda decided to specialize exclusively in political affairs, officially separating religious activism from the party after decades of pursuing both politics and preaching. This announcement fueled speculation about Ennahda’s motivations, the decision’s practical implications, and its consequences for the relationship between religion and politics in Tunisia, which was only a few years into its democratic transition at the time.
One thinker whose work can provide insight into Ennahda’s rebranding is Abdullahi An-Na’im, a leading scholar of Islam, human rights, and constitutionalism. In his 2008 book Islam and the Secular State: Negotiating the Future of Shari’a, An-Na’im outlines a normative framework for relating Islam, the state, and politics with the goal of equipping Muslims with the tools and space to negotiate “the role of Islam in public life.” Writing before the Arab Spring, An-Na’im did not have the opportunity to include post-revolution Tunisia as a case study. However, many of the core themes in his book—such as constitutionalism, human rights, and the public place of religion—have emerged as primary topics of debate in Tunisia’s democratic transition since 2011, resulting in an opportunity to assess how his ideas have played out in this context
Board Gatekeepers
Get PDFFor the last decade, investors, scholars, and regulators have turned to independent directors in key leadership positions as a means to safeguard corporate boards’ ability to serve as a robust check on management’s power. As a result, a vast majority of public companies’ boards are now led by an Independent Chair, or, alternatively, include a Lead Independent Director.
These ostensible outsiders—which this Article calls “board gatekeepers”— are meant to be even more empowered and detached from management compared to the rest of the board. This allows them to serve an independent gatekeeping function—a necessary guardrail against management’s ability to exert undue control over the boardroom. But a closer look at board gatekeepers paints a concerning reality. Through a hand-collected dataset and interviews with directors and general counsels, this Article reveals, for the first time, that installing board gatekeepers is not the cure-all it seems. Instead, board gatekeepers are often deprived of the powers necessary to rebalance the boardroom dynamic and, in many cases, their own independence is questionable at best—and recognizing them as such has numerous theoretical and practical implications.
This Article makes two key contributions to the literature. First, using a first- of-its-kind, hand-collected, and coded dataset of 900 public companies, it exposes the unfettered discretion companies have in designating gatekeepers’ independence and powers—revealing that many board gatekeepers are in fact gatekeepers in title only, lacking both the independence and powers that are critical to their role. Second, this Article uses the context of board gatekeepers to illuminate the inherent difficulty with relying on an abstract concept of independence, underscoring the importance of what it terms “functional independence.” Recognizing that companies with faux gatekeepers may pose specific governance concerns, this Article then offers several policy recommendations to ensure gatekeepers’ functional independence
An Ocean Apart: The Mandatory Takeover Rule in Brazil and in Europe
Get PDFThe common statement that there are two different regulatory systems concerning the mandatory takeover rule – the market rule system and the equal opportunity system – is, in practice, overly simplistic: facing the choice between freedom and strict regulation on whether the control premium should be proportionally shared with all non-controlling shareholders, some jurisdictions have adopted a hybrid solution. The Brazilian mandatory takeover rule (re)approved in 2001 is a good example. This paper will comprehensively analyse the Brazilian and European rules on mandatory takeover bids, using empirical data about the Brazilian markets and details of various cases that tested the limits of the existing regulation
The Roberts Court and Class Litigation: Revolution, Evolution, and Work to Be Done
Get PDFSince 2005, when John Roberts was appointed Chief Justice, there have been startling changes to the world of class actions. Jurisdictionally, the Class Action Fairness Act of 2005 fundamentally reconfigured the allocation of class litigation between federal and state courts. Federal Rule of Civil Procedure 23, the federal class action provision, has been amended three times in the Roberts years, once in a meaningful way. Our focus, however, is on what the Roberts Court has done in the class action world through its caselaw. On that score, we have a remarkable corpus. From Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. in 2010 through TransUnion LLC v. Ramirez in 2021, the Court has issued more than two dozen class action decisions, more than in any comparable period.
In a 2015 symposium article, I commented on the Court’s class action jurisprudence through the 2014 Term. The Court’s interest has not waned since, with fourteen decisions between 2015 and 2021. My purpose here is not to catalogue each of these newer cases. Rather, the goal is to offer a retrospective on Roberts Court decisions in three quite specific areas: (1) class certification practice under Rule 23, (2) “fraud-on-the-market” securities fraud litigation, and (3) the intersection of class practice and justiciability. These are not the only areas the Court has addressed and, arguably, are not even the most important. I choose them because they show different modes of engagement by the Court: revolution, evolution, and raising topics requiring future attention
In Contracts We Trust (and No One Can Change Their Mind)! There Should Be No Special Treatment for Religious Arbitration
Get PDFThe recent article In God We Trust (Unless We Change Our Mind): How State of Mind Relates to Religious Arbitration ( In God We Trust ) proposes that those who sign arbitration agreements that consent to a religious legal system as the basis of the rules of arbitration be allowed to back out of such agreements based on their constitutional right to free exercise. This article is a response and is divided into two sections. In the first section, we show that such an exemption would violate the Federal Arbitration Act\u27s (FAA) basic rules preventing the states from heightened regulation of arbitration generally and would also run afoul of the constitutional duty--twice reaffirmed by the Supreme Court in the last few years--not to treat religious institutions, ideals, and motives differently from their secular counterparts.
In the second section, we argue that even if these objections are overcome by statute or constitutional amendment, creating an exemption to the general contractual obligations of arbitration merely because someone had a change in religious heart is an exceedingly unwise idea and does not further the goals of either religious liberty or arbitration law. Because the stakes are so much higher than mere contract law, the rights protected need greater deference. In contradistinction to In God We Trust, the second section argues that the Conscientious Military Objector model is unique and should not be expanded to any civil context exactly because military service is not a contractual model but can produce criminal penalties. Further, we note that problems of excessive entanglement, hinted at by this author and outlined in the article The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional, are not serious constitutional matters and hardly justify revising arbitration law in light of them. Indeed, contractually based religious arbitration enhances religious liberty, and any unique treatment would reduce arbitration\u27s developing benefits to religious and secular communities through its choice of law provisions
Ostracism and Democracy
Get PDFThe 2020 Presidential Election featured an unprecedented attempt to undermine our democratic institutions: allegations of voter fraud and litigation about mail-in ballots culminated in a mob storming of the Capitol as Congress certified President Biden’s victory. Former President Trump now faces social-media bans and potential disqualification from future federal office, but his allies have criticized those efforts as the witch-hunt of a cancel culture that is symptomatic of the unique ills of contemporary liberal politics.
This Article defends recent efforts to remove Trump from the public eye, with reference to an ancient Greek electoral mechanism: ostracism. In the world’s first democracy, Athenians assembled once a year to write down on pottery shards, ostraka, names of prominent figures they wished to exile from their political community. I argue that this desire to banish powerful figures from political participation is, in fact, sign of a wellfunctioning, legitimate democracy. In particular, ostracism emerges as an effective procedure during an erosion of the perceived legitimacy of one’s political adversaries, and it is grounded in a hope to restore a once-shared commitment to the foundational norms of democratic contest
Conscience Leave
Get PDFIn the federal government, political officials come and go while civil servants remain. In the ordinary course, the political officials make decisions about what policies the government will pursue while civil servants use their labor and expertise to carry those policies out––even when they disagree with them. But what happens when political officials pursue policies that civil servants view as deviating from normal bounds–– policies that are unethical, immoral, or unlawful? This Article examines when and how civil servants might object to such policies, including going so far as to leave government service. It concludes that when faced with such situations, employees’ personal benefit-cost analyses will generally lead them to not object to deviating policies.
Of the costs federal employees must consider, the dominant one is usually economic: They need a job and cannot afford to leave one without having another lined up. Although existing civil-service rules partly reduce this cost—such as through giving anti-retaliation protections to whistleblowers—those protections are often insufficient to motivate objection. As a corrective, this Article proposes the introduction of “conscience leave.” For employees facing deviating policies on the job, conscience leave would offer a safety net to go on paid, inactive status while searching for new employment. In return, leavers would report to Congress their reasons for taking leave. This safety net would promote several socially desirable outcomes, including enabling federal employees to serve consistent with their consciences, deterring deviating policies, and fostering congressional oversight
Prosecuting Crimes Against Culture: The Contributions of the Al-Mahdi and Ntaganda Cases to the ICC Approach to Cultural Property Protections
Get PDFAcross the world, cultural property has come under heavy fire in the midst of war. The proliferation of attacks against cultural property in armed conflicts around the world has underlined the need for effective protections for such property. If the International Criminal Court finds a way to extend jurisdiction to offences in these territories, Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute will become the most important tools of prosecution. But the statute itself, while aiming at ending impunity, is bound by the pillars of criminal justice—lex praevia, lex certa, lex stricta, and lex scripta. This Article examines the Al Mahdi judgment, which provided some guidance on the scope of these provisions, for failing to appreciate certain nuances of the law and unpacks the divergence in the jurisprudence of the Court and calls for decisive clarification, particularly in light of the recent Ntaganda Trial Chamber judgment, which also examined Article 8(2)(e)(iv) of the Rome Statute