Comparative Law

This Essay sketches an informal theory of the impact of technological change on international economics, and hence international relations expressed as international law. The theory points to a policy trilemma, something that I call Cerberus in a perhaps futile attempt at an arresting metaphor. The Essay uses the trilemma to illuminate the general trends in technology policy we see playing out in China, Europe, and the United States. It argues that we have the privilege of witnessing an ongoing natural experiment in optimal technology regulation and legal policy, with no guarantee as to which approach will prevail.

Of course, like all natural experiments, the signal struggles to emerge against a background of geopolitical noise. Events and projects unrelated to policy competition might decide the game, and we might never find out what an optimal strategy may entail. Still, we can’t rule out the chance that we might learn something as the great game plays out.

The 2011 Arab Spring was an inflection point for the Middle East and North Africa region, representing an opportunity for democracies in countries that have only experienced authoritarianism as sovereign nations. Both Tunisia and Egypt drafted and ratified new constitutions in the wake of their revolutions. Among the chief worries that citizens and onlookers had in their drafting processes was the role that Islamists would have, particularly in human rights and minority protections. As more citizens wanted fundamental rights protected in their constitutions, the drafters had the task of incorporating them with the Islamic identity of the state. Compromises by the Tunisian Islamists and secular groups led to a more well-received constitution by minority groups, while the opposite happened in Egypt. This Comment argues, based on the comparative success of the 2014 Tunisian Constitution, that religious-based democratic states will need to include more protections for minority and historically marginalized groups to increase their acceptance and longevity.