The Turkish democratic experience is sometimes considered a potential model for transformations underway in the Arab world. In this context, it is worth considering how impediments to democratic consolidation took root in Turkey and analyzing possible mechanisms for resolving tensions that block reforms. This Article illustrates how institutions that might ordinarily be expected to secure democratic space, such as a strong and independent judiciary, may instead serve as a constraint on political liberalization. The role of the Turkish judiciary as the guardian of particular ideological precepts — a role that is, at times, in tension with democratic commitments — is grounded in the history of Turkey’s transition from imperial collapse to republicanism. The constitutionalization of an illiberal conception of secularism insulated founding ideological precepts from reinterpretation through ordinary politics. The surprising outcome in Turkey has been pro-Islamic groups that serve as accidental liberalizers and secular elites that oppose democratization.

The particulars of the Turkish case may be unique, but a study of elite strategies in Turkey to manage transition and institutionalize preferences yields broadly applicable lessons. While this study offers a cautionary note, it also identifies contemporary sources of optimism when the focus turns from conventional prescriptions for democratic transition to the relationships between democratic publics and state institutions in a particular context. By analyzing the constitutional amendments that were adopted in the 2010 Turkish referendum, the Article suggests that when judicial independence is combined with democratic checks, the risks of illiberal interventionism in defense of elite privilege may be mitigated in cases of transition.

This Article critiques the rational-institutional analysis of the World Trade Organization (WTO) that Gregory Shaffer and Joel Trachtman present, and proposes an alternative “sociological” framework. The Article notes that rationalism, although a powerful heuristic of the WTO’s operation, inevitably overlooks the WTO’s rich social dimensions and thus leaves behind several theoretical blind spots, such as the lack of any satisfying explanation on institutional evolution and development concerns. In an attempt to address these blind spots, the Article offers a sociological-communitarian paradigm that emphasizes cognitive elements, such as ideas, norms, and discourse, to explain the social dynamic within the WTO. Under this new framework, an institutional ontology of the WTO is defined not as a contract (Gesellschaft), but as a community (Gemeinschaft). Within the WTO’s community, its members convey their thoughts and arguments (ideas) through an iterative and ritualized process (discourse) and eventually institutionalize those ideas as norms. The Article also reinterprets rational choice narratives originally provided by Shaffer and Trachtman in a way so that the rationalist-institutional analysis converges with the sociological-communitarian paradigm. The Article concludes that the new paradigm can help WTO members adjust their ways of thinking and generate new ideas and proposals to address some of the chronic problems that the WTO confronts.

The military intervention in Libya on the basis of United Nations Security Council Resolution 1973 raises important questions with regard to the legality and legitimacy of forceful regime change. While the resolution is in accordance with the generally accepted post-Cold War practice of the Security Council, its scope and limits are not entirely clear. As a result, controversial debates about the legality and the legitimacy of the military intervention have begun. A closer examination of Resolution 1973 shows the considerably broad scope of the authorization, which could — with certain restrictions — also be regarded as a legal basis for regime change in Libya. In light of the rather weak legal restraints on the Security Council, Resolution 1973 has to be considered legal and consistent with the Security Council’s competences under the Charter of the United Nations. However, the authorization is problematic from a policy perspective and with regard to its legitimacy. Beyond the case of Libya, Resolution 1973 and the surrounding debates therefore raise the general question of the legality, legitimacy, and feasibility of forceful regime change under a mandate of the Security Council and its implications for the international system of collective security.

Because of the broad jurisdiction American courts have asserted in cases arising under the Securities Exchange Act of 1934, they have been called a Shangri-la for “foreign-cubed” class actions with little connection to the United States. Over the past forty years, the standards used by American courts to determine their jurisdiction in international securities disputes have evolved, culminating in the U.S. Supreme Court’s Morrison decision of 2010. The new transactional test promulgated in Morrison replaced all of its predecessor tests, from a test measuring whether the conduct in question took place in the United States to a test measuring whether the effects of the conduct were felt in the United States, to a combined conduct-effects test. This new transactional test is unsatisfactory, however, because depending on how it is interpreted, it is either too narrow to protect American investors as Congress intended in Section 10(b) of the Securities Exchange Act, or too broad to resolve the ambiguities that plagued the conduct-effects test.

This Article proposes a new effects test that will resolve ambiguities, protect American investors, and refrain from asserting American judicial jurisdiction overseas contrary to principles of international comity. Though the effects test would not grant private parties a cause of action against violators operating in the United States but who exclusively defraud those overseas, Congress has already granted authority to federal agencies to pursue such bad actors. The effects test is also in accordance with principles of other important jurisdictions, such as the European Union, and could serve as a basis for an international agreement on jurisdiction in international securities cases.