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With openness comes vulnerability. David Sloss's new work, Tyrants on Twitter , elevates the abuse of social media by autocrats to a new war front, reminiscent of the concerns for foreign penetration during the Cold War. His response to this new round of "information warfare" is the mobilization of a transnational alliance of the 40 or so leading democratic countries to register citizens for use of social media and filter out tyrants and their fronts, be they real people or bots. The book begins by chronicling the extent of democratic decline, a well-defended starting point. More complicated is the argument that the correlation between democratic decline and foreign interference establishes the causal role of the latter. Even more difficult is the conclusion that there is need for war-like footing to mobilize against foreign threats. The review ends with a note of caution on the costs associated with democratic societies closing up in the face of foreign challenge. [ABSTRACT FROM AUTHOR]

Debates over the role of judicial review in a constitutional democracy gravitate to one of two poles. Either the debates are framed in terms of the power of courts countering the outputs of a well-ordered legislative process, or they are framed in terms of minority rights that are ever vulnerable to the tyranny of the majority. This Article parts company with the customary debate in two ways. First, the inquiry focuses on the structures of democratic governance rather than the relation between a governing majority and the rights of disfavored individuals or minorities. Second, and contrary to the conditions assumed by critics of judicial review such as Jeremy Waldron and Richard Bellamy, this Article aims to look directly to the 'contaminated' domain of our lived experience in the moment rather than an idealized vision of well-ordered parliamentary sovereignty. Especially in a time of populist challenges to the institutionalization of democratic politics, the role of constitutional courts as potential brakes on the politics of immediacy takes on greater and greater significance. Relying on examples from jurisdictions around the world, this Article sets out three types of interventions ranging in terms of how problematic they are for democratic governance. First is the use of constitutional review to prevent entrenched officeholders from undermining their electoral accountability, as seen in places as far removed as Taiwan and North Carolina. The second is the role of court interventions to bolster what is termed the 'soft power' of democracy in which institutional norms compel a politics of negotiation and compromise. Finally, there is the temptation for courts to substitute judicial authority for failing state competence of democracies in general, and of the legislative branches in particular. In each case, this Article examines judicial review to determine to what extent the judiciary can serve as an institutional buffer in protecting democracy against systemic failure, sometimes on matters that may pertain to fundamental liberties but more often on questions of the exercise of governmental authority. The question here is whether, in times of challenge to democratic functioning, the judiciary may play a stabilizing role in warding off temporary political expedients that threaten governmental integrity. The term 'stabilization' invokes the role of a central banker charged with maintaining fiscal integrity in the face of inevitable partisan demands for unsustainable short-term returns. In turn, the inquiry is whether judicial interventions in defense of the structural integrity of democratic rule can be thought of in similar terms of conservatorship by a semi-independent entity and, in turn, how this institutional role of the judiciary might be utilized in times of systemic stress., INTRODUCTION 3 I. ASSUMING A WELL-FUNCTIONING DEMOCRACY, OR NC 9 A. Idealized Democracies 9 B. Real Democracies 14 II. BASIC STRUCTURES AT PERIL 16 A. Taiwan 17 B. India 21 [...]

The article focuses on the historical tension and evolving dynamics between fixed procedural rules and discretionary judicial practices in American civil litigation. It explores how this tension has developed over time, examining the impact of managerial approaches, the decline of trials, and the influence of multidistrict litigation (MDL) on the formal structure of party-driven discovery.

Largely missing from the extensive discussions of populism and illiberal democracy is the emerging question of 21st century constitutionalism. Nowadays, it is hard to see relevant constitutional changes without a strong appeal to direct popular political participation. Institutional mechanisms such as referenda, citizens' assemblies, and constitutional conventions emerge as near-universal parts of the canon of every academic and political discussion on how constitutions should be enacted and amended. This Article's aim is to offer a cautionary approach to the way participatory mechanisms can work in constitution-making and to stress the difference between the power to ratify constitutional proposals and the forms of governance that must follow. Constitutions are necessarily the product of political and historical moments. Ours is a time of populist challenge to the restraining institutions of governance. We show how constitution-making processes taking place under existing political contexts can fail not simply despite the existence of participatory mechanisms, but in large part because of them. We identify two types of failures. First, the authoritarian failure, which consists of constitution-making processes that lead to authoritarian outcomes or become part of democratic backsliding or abusive processes. Second, the activation failure, by which constitutions are not passed. This failure is likely to take place when reforms attempt to bypass established, functioning institutional actors, whatever their flaws. This Article will turn to the recent failure of the Chilean constitutional effort in 2022 to focus on the historic roles of nonstate organizations, most notably political parties, in stabilizing and legitimizing successful democratic governance. The current trend in constitutional formation, reflecting the ascending populist ethos of our times, is to bypass the representative institutions that do exist in favor of a pact between the state and an ill-defined entity known as "the people." The tendency of political power without structural checks and balances to lead to autocracy is reasonably well understood. But Chile, together with other recent examples of failed constitutional processes, highlights the risks of activation failure in democratic settings--i.e., contexts in which representative institutions exist and function, though flawed. We argue that a relevant condition to prevent the activation failure is to use the constitution-making processes as an opportunity to strengthen the political party system by including the existing parties in the process. Success stories of constitution-making have widely shown the advantages that political compromises among rival actors bring in terms of procedural legitimacy--wide acceptance of the constitution's content--and substantive legitimacy--the inclination of those processes in promoting politically liberal institutions; but little has been said about activation failures lacking those features. This Article seeks to fill that gap. [ABSTRACT FROM AUTHOR]