Under the migration of the proportionality doctrine to Asia, the dialogue and interaction between public law and private law have deepened and become more fruitful. The proportionality doctrine, usually accompanied by a general human-rights-limitation clause in the constitution, has made human rights reasoning come into the making of private law more directly and extensively. The proportionality principle also equips the judiciary with an analytical tool to assess the constitutionality of the state’s law or actions that limit the constitutional rights of involved parties.

This Article discusses the dialogue between public law and private law under the migration of the proportionality doctrine to several Asian jurisdictions, with a focus on Vietnam. The dialogue can be identified in three aspects: (i) dialogue as the impact of public law on private law; (ii) dialogue as the interaction between public law and private law; (iii) dialogue as the politico-legal interaction between lawmakers and courts. Among Asian jurisdictions, the Vietnamese legal system has arguably witnessed an inadvertent migration of the proportionality doctrine, and therefore provoking interesting and useful debates on the effect of constitutional rights in private law in both theoretical and practical aspects.

While codes/architectures in cyberspace are usually considered to regulate human activity, the productive dimension of such power has less been discussed. Codes/architectures also change market mechanisms, largely due to the evolution of digital platforms as drivers of new modes of production, increasingly becoming a powerful organizing body that mobilizes and manages productive resources like goods, services, information, human capital, money, et cetera, ostensibly through market mechanisms and processes. It is therefore necessary to further explore how market mechanisms have changed under the shaping of digital platforms and, indirectly, how the legal rules surrounding market resources, structures, competitive behaviors, distribution, and other dimensions need to be adjusted accordingly. This Article attempts to further identify the dual attributes of platforms, focusing on how market mechanisms have been affected by changes in modes of production, changing their operation and adapting to advances in productivity, and evolving from a traditional free market to a more cybernetic marketplace, and indirectly to a more controlled marketplace, which indirectly requires the corresponding legal rules to be adjusted. In this sense, digital markets and platform organizations are two sides of the same coin, and this Article discusses the functions of the two in some of the argumentative paragraphs without distinguishing between them.

You can sell your soul to the devil, but it would be especially devilish if the sale were hidden on page twenty-nine of the terms of service of a ride sharing app. Our world is full of contract text for which there are no readers, allowing term setters the unilateral power to make law. There are two ways to approach this problem: providing more information, better information or more salient information on contract terms—information model—or controlling the content of the terms of form contracts—control model. This Article explores the interplay between the information model and the control model for protection of recipients of standard form contracts. It argues that the control model and the information model are mutually exclusive from a conceptual point of view. Therefore, using information to protect consumers should be eschewed in favor of term control – we should say farewell to the information model. This would mean that, given strong court control, contract terms could be set without notice, possibility to review or assent to them. Where court control is weak it should be strengthened. This Article develops these arguments with a view to the European and U.S. discourse on standard form contracts.

The proportionality between crime and punishment is made, and the way it is made makes for a certain kind of criminal law. By analyzing how punitive measures are justified in Swedish criminal law and crime policy through appeals to proportionality, the Article demonstrates how proportionality has been made and remade to legitimize an increasingly punitive crime policy, obscuring the reasons for these legislative changes. The Article thus calls for the principle of proportionality to be dismantled and employs a discursive approach to reverse-engineer claims of proportionality in Swedish legislative proposals. The purpose of this approach is to make visible the meanings and limits of the contemporary crime policy understanding of crime, punishment, and a just criminal law.

A decade ago, in Allianz, the Court of Justice of the European Union (CJEU) delivered a landmark ruling on the interpretation of anticompetitive object in EU competition law. The judgment marked the beginning of a new era, where identifying an anticompetitive object could involve a comprehensive, case-by-case examination extending to aspects traditionally associated with effects analysis. This Article provides an account of this development—from its inception and the trajectory of subsequent case law to the establishment of the full-fledged doctrine—and offers a critical evaluation. Through an analysis of the case law, the Article argues that the Allianz doctrine adds no substantive value. All cases where it has been applied could have been equally, and indeed more effectively, analyzed under the traditional category-based framework of object inquiry. It further contends that the frameless, amorphous, and unpredictable nature of the current examination undermines the very certainty and structure that the object inquiry is designed to ensure. The Article advocates for a return to the category-building principle and argues that the Court should focus on developing a more nuanced and differentiated effects analysis instead of discarding the category-based approach.

The right to rehabilitation for prisoners is a fundamental human right recognized under international standards, imposing a positive obligation on states to ensure its fulfilment. This Article undertakes an in-depth examination of prisoners’ rehabilitation through both micro and macro lenses, examining individual experiences alongside broader societal impacts. Drawing on insights from scholars like Edgardo Rotman and Amanda Ploch, contrasting rehabilitation models are explored, highlighting tensions between institutional discipline and individual empowerment. At the macro level, rehabilitation addresses socio-economic inequalities and collective benefits, yet may overlook individual dignity from a human rights perspective. In contrast, Rotman’s humanistic model emphasizes personal insight, dialogue, and prisoners’ intrinsic rights at the micro level, fostering empowerment and a sense of responsibility. A dual perspective—from macro policy indicators to micro-level prisoner experiences—is crucial for a nuanced evaluation of rehabilitation efficacy. This exploration underscores the need for effective execution and resource allocation to uphold principles of human dignity and ensure the right to rehabilitation becomes a tangible reality for every individual within the criminal justice system.

There has been increasing attention both at national and international level to demands of reparations for historic injustices—colonialism, enslavement and the transatlantic chattel slave trade—and the role and relevance of international law in this context. A routinely identified legal obstacle to reparation demands is the doctrine of intertemporal law, which is generally interpreted to require past acts to be considered in the light of the law contemporary with them. This interpretation of the intertemporal doctrine has been contested more recently in international legal scholarship and practice, which both seek to instill an increased sense of ambiguity into the laws of the past, but crucially, this Article shows, these efforts do not extend this ambiguity to the doctrine of intertemporal law itself. This Article takes a closer look at the intertemporal doctrine and interrogates these varying interpretations. It analyses both conventional and critical international legal scholarship on the intertemporal doctrine in the context of reparation claims for historic injustices and contrasts them to the scholarly reception of the intertemporal doctrine in the past and selected cases from the International Court of Justice (“ICJ”), arguing that whilst an often–unquestioned static understanding of intertemporality prevails, more dynamic interpretations of the doctrine also exist. By building on these legal arguments that enshrine a less static relationship between past and present laws within the discipline of international law—including ICJ decisions, judges’ dissenting opinions, states’ arguments, and critical legal scholarship—the Article defends a potentially emancipatory interpretive approach to the doctrine that could reframe it so as to support, rather than hinder, reparation claims for historic injustices in international law.

The entity responsible for preparing and distributing the restatements of U.S. law has commissioned a new Restatement of Conflict of Laws. This effort includes a reworking of the provisions relating to contractual choice of law clauses. In this Article, I describe the draft contractual choice of law provisions. As a governing theme, I highlight the balance between party autonomy and economic efficiency on one hand and respect for democratic sovereign governance on the other hand: a balance that can traced through each of the new draft provisions. I explain how the current draft resembles and differs from the provision on contractual choice of law clauses in the prior restatement on conflict of laws.

During the COVID-19 pandemic, the Brazil Supreme Court (STF) decided numerous legal claims seeking to compel the federal government to create and implement policies to protect public health during the crisis. The STF, in strong terms, condemned the federal government’s inaction and lack of commitment to protecting rights. However, the STF opted for a combination of “weaker” orders and juxtaposed a rights-based and federalism-based review of constitutionality to sideline the federal government and allocate decision-making to subnational governments. Building on both the literature on social rights and on judicial behavior, this Article argues that the STF strategically utilized these solutions to advance its preferred policies and affirm its commitment to rights while avoiding the costs associated with making policy and controlling policymakers.

This Article examines dynamic pricing on Artificial Intelligence (AI)-driven platforms through a theoretical framework. It explores how AI enables platforms to engage in first-degree price discrimination, allowing them to perpetually impose “consumer-surplus-exhausting prices” based on personalized data—a significant shift from pre-AI price differentiation toward a more systemic and actual discrimination. This raises concerns about consumer welfare, as AI-driven dynamic pricing may eventually lead to worse outcomes than traditional monopolies, with full consumer surplus extraction despite competitive transaction volumes. In addition, this Article introduces the concept of multiple platforms in the same relevant market functioning as an “AI-driven de facto single entity.” It also explores consumers’ “profiling lock-in” and the erosion of the “invisible hand” by AI-driven dynamic pricing. Furthermore, the Article examines how a state-owned platform’s “quasi-taxation effect” could be exacerbated by AI-driven first-degree price discrimination. It argues that even in purely private markets, AI-driven pricing may generate a similar quasi-taxation effect. In some cases, however, a “quasi-subsidy effect” may also occur for consumers with lower reservation prices. The Article also briefly discusses regulatory responses, including the importance of obtaining enhanced consumer consent for the use of personal information in AI-driven pricing strategies.

The digital revolution has transformed the dissemination of messages and the construction of public debate. This article examines the disintermediation and fragmentation of the public sphere by digital platforms. Disinformation campaigns, that aim at assuming the power of determining a truth alternative to reality, highlight the need to enhance the traditional view of freedom of expression as negative freedom with an institutional perspective. The paper argues that freedom of expression should be seen as an institution of freedom, an organizational space leading to a normative theory of public discourse. This theory legitimizes democratic systems and requires proactive regulation to enforce its values.

Viewing freedom of expression as an institution changes the role of public power: this should not be limited to abstention but instead has a positive obligation to regulate the spaces where communicative interactions occur. The article discusses how this regulatory need led to the European adoption of the Digital Services Act (DSA) to correct DPs through procedural constraints. Despite some criticisms, the DSA establishes a foundation for a transnational European public discourse aligned with the Charter of Fundamental Rights and member states’ constitutional traditions.

Kenya’s 2010 Constitution represents a landmark shift towards equality, incorporating diverse conceptions through provisions such as Article 27 on non-discrimination, Article 43 on socio-economic rights, and Article 56 on cultural and religious diversity. This progressive framework seeks to address historical inequalities that marginalized groups—such as women, persons with disabilities, and minorities—have faced in accessing resources, services, and political participation. However, implementation remains the critical determinant of whether these constitutional ideals translate into tangible societal change. This Article examines the role of the judiciary as a constitutional guardian in ensuring the realization of equality-related rights in Kenya’s hybrid democracy, characterized by democratic aspirations alongside authoritarian tendencies. It highlights the judiciary’s dual responsibility to balance deference to State organs with holding them accountable to constitutional mandates. By analyzing key cases, it identifies how courts have navigated tensions between promoting substantive equality and respecting the separation of powers, especially in the context of socio-economic rights and governance challenges. The Article advocates for an equality-sensitive approach to judicial review that integrates both strong-form and soft-form oversight, depending on the case’s circumstances. It emphasizes the application of a contextual and multi-dimensional equality framework—addressing redistribution, recognition, participation, and transformation—to ensure that vulnerable groups are protected. In addition, it proposes a mixed standard of review in socio-economic rights cases, balancing reasonableness with prioritization of the needs of vulnerable groups, and the use of structural interdicts to enforce compliance. Finally, this Article emphasizes the judiciary’s pivotal role in fostering constitutionalism and mitigating systemic inequalities. It calls for continued judicial vigilance, collaborative constitutionalism, and active civil society engagement to uphold the transformative promise of the 2010 Constitution, particularly in Kenya’s complex hybrid democracy.

While there is growing evidence that employers hold substantial market power and that workers suffer from worsened working conditions as a result, interventions against employer conduct through EU competition law remain limited. A possible reason for this reserved approach is the predominance of consumer welfare as the objective of the law. To be sure, harm inflicted on workers by employers may under certain circumstances translate also into harm to downstream consumers. But in other cases the effect on consumers may be neutral or even positive. Against this background, this Article offers two lines of argument for EU competition law to recognize harm suffered by workers from restricted competition between employers as a form of harm relevant in itself. First, the Article argues that harm to any market counterparty, including workers, is a sufficient condition for intervention. Second, in the alternative, the Article argues that at least harm to individuals at the edges of supply chains, that is final consumers as well as workers, warrants action. In any case, EU competition law should not be more Catholic than the Pope: The pursuit of consumer welfare, as an objective borrowed from U.S. antitrust, should not lead to less intervention against employer conduct than we see in the United States.

The development of brain-reading technologies has raised expectations that it will finally be possible to detect lies. However, the existence of these new technologies has also raised fears that the authorities might use them to read people’s minds without their consent and obtain evidence that could be used against them in criminal proceedings, a scenario that raises questions about possible violations of the right against self-incrimination. The aim of this Article is to analyze whether the obtaining of incriminating information through the non-consensual use of brain-reading technologies can violate the right against self-incrimination under its traditional interpretation, according to which the scope of application of this right includes only “testimonial evidence,” thus excluding “real or physical evidence.”

This article explores how the new generation of legalistic autocrats consolidates power—not by committing mass human rights violations as a way of consolidating power as authoritarians of the twentieth century did, but instead by attacking checks and balances so that democratic institutions are weakened. Judges at transnational courts, faced with evidence of these attacks, are developing a jurisprudence through which they transform the vindication of individual rights into requirements that states maintain democratic structures. While it is not clear if this jurisprudence prevents backsliding, it may become useful as new democrats attempt to restore constitutional institutions using these decisions as guidelines for democratic reform. In doing so, new democrats would be giving meaning to the rule of law writ large.

The ability of parties to a multistate contract to choose the law that governs their relationship, once controversial, is now almost universally accepted. So too are the conventional limits on that ability. Most jurisdictions restrict party autonomy in the name of the same set of concerns: Power disparities between the parties that might lead to oppression or unfairness, the policies or interests of the forum, and the policies or interests of the state whose law would govern the contract in the absence of a choice-of-law clause—the state whose law was not selected. This Article adds one more: the interests and policies of the state whose law has been selected. The idea that selecting a state’s law can offend its policies might seem counterintuitive. American scholars, at least, normally think that the way to respect a state’s policies is precisely to select its law, so the idea that those policies might counsel against selecting the law seems odd. But further analysis shows that there are several reasons a state might not want its law selected, and that courts should—and sometimes must—pay attention to those reasons.

This Article examines the evolving concept of the material constitution and its application to the EU. The first part focuses on the theory of Italian jurist Costantino Mortati, exploring both its foundations and its contemporary relevance. Mortati’s understanding of the material constitution—deeply rooted in the framework of the modern nation-state—faces significant challenges when extended to supranational entities such as the EU. The second part turns to the work of Riccardo Monaco, who reimagined constitutional normativity in light of European integration. His analysis highlights the dynamic, institutional character of the European Communities’ legal order. The Article traces how the concept of the material constitution has been adapted—and ultimately transformed—within transnational contexts. This transformation reveals both the concept’s interpretive value and the theoretical tensions involved in applying it beyond the boundaries of the nation-state. In particular, it underscores the normative significance of the ECs’ underlying political economy.

The numerous scandals that have marred the world of football suggest that reform is badly needed. As governing bodies like FIFA and UEFA fail to make meaningful improvements, calls for public regulation are gaining ground. This article explores what the European Union (EU) could do to effect change. Although long hailed as a powerful sports regulator, there is a widespread feeling that the EU’s regulatory potential remains unfulfilled. The article argues that the Union is in a unique position to leave a positive mark on football governance if it decides to regulate the sport more extensively. Three options are outlined: increasing the intensity of scrutiny exercised under the internal market rules, changing the approach towards cooperation with football stakeholders, or enacting a European Sports Act. After examining the benefits and drawbacks of each route, it will be claimed that, on balance, the most promising avenue is EU legislation which sets out minimum governance standards as well as substantive requirements, including on human rights, gender equality, and athlete welfare. The conclusion will offer some reflections on what would need to happen for the proposal to materialize, discussing the role of advocacy coalitions and crises in bringing about regulatory change.