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

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.

• Offe
• 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