This chapter concludes the monograph, summarizing the main reflections offered throughout and reflecting on the future of the relationship between the individual and the International Court of Justice.

This chapter examines the constitutional role of parties and partisanship. We begin by sketching a conception of constitutionalism as a mechanism for finding an equilibrium between different social interests. Appealing as this ideal of moderation has long been for many, we highlight its limits as a basis for democracy and progressive change. A desirable constitutional model must make space for political conflict and immoderation, and as we go on to argue, partisans and the associations they form are an important foundation for this. The final section connects these observations to the contemporary political world, in particular to the state of parties today and to some of the misplaced anxieties about ‘polarisation’ they give rise to.

In democracies based on elections, representation brings a novel kind of freedom to the fore, one that does not need to be associated with the citizen’s direct action or presence in the place where decisions are made, as is the case in direct democracy. It enlarges the space and meaning of politics in ways that cannot easily be reduced to electoral authorization and consent, and it invariably connects with both the lawmaking institution and the citizens’ voluntary participation, their equal right to define the political direction of their country but also claim, vindicate, and monitor their representatives. This chapter analyzes “political representation” in its actors, components and processes and compared it to other forms (as statistical sample and embodiment) and finally discusses the implications of the mixture of representation and democracy in contemporary politics.

This chapter explains why right-wing strategies of adaptation and survival had varying degrees of success during and after the left turn. It argues that right-wing parties were most likely to survive and remain competitive in national elections when they relied on strong party brands and organizations. These strong party brands and organizations depended, in turn, on when the parties were founded and whether they had roots in an authoritarian regime.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

Many of the justifications for the electoral college focus on maintaining the harmony and cohesion of the Republic. Upon closer scrutiny, however, we find that the electoral college does not contain the results of fraud and accidental circumstances within states. Instead, it magnifies their consequences for the outcome nationally. Direct election, by contrast, would create disincentives for fraud and recounts. Similarly, the electoral college does not produce concurrent majorities around the country and force winning candidates to moderate their stances to appeal successfully to all segments of society and all geographic locations. Equally problematic is the view that victory in the electoral college ensures presidents effective coalitions for governing. Moreover, the electoral college does not produce compromise within states, and it is fundamentally different from constitutional provisions that require supermajorities to take positive action. The electoral college produces neither majority-vote victories for presidents nor mandates for their governing. It is also not a bastion of federalism. Direct election of the president would not diminish the role of state and local parties and officials or the nominating conventions, and national standards for elections are already in place and not to be feared.

At the core of the democratic process is the view that “all votes must be counted as equal.” In an election for a national officeholder, each voter has a right to expect that he or she will stand in the same relation to the national official as every other voter. It is more important than ever that we act on our best principles and not our worst instincts. Understanding the flawed foundations of the electoral college is the critical first step on the road to reforming the system of presidential selection. Given its many advantages of direct election of the president for the polity, the United States should adopt direct election of the president. The president and vice president are the only national officials who represent the people as a whole, and the candidate who wins the most votes best approximates the choice of the people. This is the essence of “the consent of the governed.”

Most critics of direct election of the president assume that it would require a runoff provision. Although it is possible that such a rule would encourage third-party candidacies, there is no need to institute a runoff under direct election of the president. Advocates of the electoral college are correct that America is better off without a second-ballot runoff election. They are incorrect, however, that the electoral college is the only way to avoid such a runoff. Although there is no voting system that guarantees that the most preferred candidate will win, both plurality election and ranked choice voting are more likely to produce the Condorcet winner than the electoral college. Neither system requires a second ballot. The electoral college is not essential for a two-party system and actually encourages third parties to run presidential candidates and discourages party competition in many states. There is no evidence that direct election of the president would polarize political parties. Similarly, there would be little incentive for secret deals under direct election and severe constraints on the bargains third parties could make. Moreover, there is much less chance of such deals under direct election than under the contingent election provision of the electoral college.

This chapter addresses the parties to international arbitration agreements. It follows the standard distinction between signatories (those persons whose names appear on the arbitration agreement – or the contract that includes an arbitration clause) and nonsignatories (those persons whose names do not appear on the arbitration agreement but are nonetheless bound by or entitled to invoke it). Part I addresses the treatment of ‘parties’ in the New York Convention and national arbitration laws governing international commercial arbitration, and the ICSID Convention governing (many) investor-State arbitrations. Part II examines the theories under which affected others – that is, nonsignatories to an international arbitration agreement – might nonetheless be bound, likewise first in international commercial arbitration and then in investor-State arbitration. Finally, Part III discusses the available empirical evidence on the parties to international commercial arbitration and investor-State arbitration proceedings.

[5.1] Judges are required to be independent in statutory interpretation in two main senses. First, they are independent in the sense of sovereign. In Australian law, judges are the sole authoritative arbiters of the meaning of legislation.