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Arguments from Failure: Institutional Expansion in Comparative Public and International Law

New Arrival Arguments from Failure: Institutional Expansion in Comparative Public and International Law

Arguments from Failure: Institutional Expansion in Comparative Public and International Law

Author: Michaela Hailbronner
Publisher: Cambridge University Press
ISBN: 9781009646666
Published In: January 2026
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents

Details

Arguments from failure – arguments that an institution must expand its powers because another institution is failing in some way 'to do its job' - are commonplace. From structural reform litigation where courts sometimes assume administrative or legislative functions, to the Uniting for Peace Resolution of the UN General Assembly, to the recent bill quashing British subpostmasters' convictions, such arguments are offered in justification for unorthodox exercises of public power. But in spite of their popularity, we lack a good understanding of these arguments in legal terms. This is partly because failure itself is a highly malleable concept and partly because arguments from failure blur into other more familiar legal doctrines about implied powers or emergencies. Michaela Hailbronner argues that we can do better: we should recognize arguments from failure as a distinct concept of public law and harness the tools of contemporary constitutional theory to evaluate such arguments in different settings.

rs the first exploration of arguments from failure – when institutions expand their power in response to the real or alleged failure of others – and a legal perspective on institutional failure more broadly.
Identifies and analyzes these arguments in a range of different contexts, from structural reform litigation in the US, India, South Africa and Colombia to German and UK examples as well European law and international law
Provides a normative framework, grounded in the principles of the separation of powers, democracy and the rule of law to assess the legitimacy of these arguments in a variety of contexts

Introduction

Part I. Why Failure Matters – And What Follows from That:

1. What are arguments failure and when might we need them?

2. Safe, legal and rare: the case for and against arguments from failure

3. Proportionality

4. Structural reform litigation in domestic courts

5. A framework for structural reform litigation

6. Failure and legal innovation: arguments from failure as judicial trumps

Part III.

7. Arguments from failure in international law

8. Efficiency and failure in the European union

9. Conclusion and perspectives