¹ Unless otherwise noted, references to disregard in this article should be understood as referring to unjustified disregard. Normative as well as positive analysis reflecting a concept of disregard occurs in scholarship and discourse in numerous domestic legal contexts, including corporate, constitutional, and administrative law. Cf.Levinson, Daryl J., Rights and Votes, 121 Yale L.J. 1286, 1288–91 (2012)Google Scholar (considering the variety of methods that political institutions use to protect minorities, particularly legally enforceable rights and votes, broadly considered).

² Materials related to the NYU Global Administrative Law Project and other research activities in the field are available on the website of the Global Administrative Law Project, at http://www.iilj.org/gal [hereinafter Global Administrative Law Project].

³ For an overview of global administrative law, see Benedict Kingsbury, Nico Krisch & Stewart, Richard B., The Emergence of Global Administrative Law, 68 L. & Contemp. Probs. 15 (2005)Google Scholar; Global Administrative Law: The Casebook (Sabino Cassese, Bruno Carotti, Lorenzo Casini, Eleonora Cavalieri & Euan MacDonald eds., 3d ed. 2012), at http://www.irpa.eu/en/gal-section/global-administrative-law-the-casebook-2 (published as an e-book) [hereinafter GAL Casebook].

⁴ See, e.g., Wouters, Jan, De Meester, Bart & Ryngaert, Cedric, Democracy and International Law, 2003 Neth. Y.B. Int’l L. 139, 180Google Scholar (on democracy in international organizations). The problem of disregard is also prevalent in domestic administrations. E.g., Wright, Ronald F. & Miller, Marc L., The Worldwide Accountability Deficit for Prosecutors, 67 Wash. & Lee L. Rev. 1587 (2010)Google Scholar; Boadle, Anthony & Ramil, Tatiana, Fresh Protests Under Way in Brazil Despite Government Concessions, Reuters, June 26, 2013 Google Scholar, at http://www.reuters.com/article/2013/06/26/brazil-protests-idUSL2N0F20SK20130626 (describing the source of the protests as problems of accountability and transparency in the Brazilian government).

⁵ Kingsbury, Krisch & Stewart, supra note 3, at 18 (explaining the concept of global administrative space).

⁶ On considerations of political economy in global regulatory governance, see Kingsbury, Krisch & Stewart, supra note 3; Benvenisti, Eyal & Downs, George W., The Empire’s New Clothes: Political Economy and the Fragmentation of International Law, 60 Stan. L. Rev. 595 (2007)Google Scholar. On constructionist influences, see Ryan Goodman & Derek Jinks, Socializing States: Promoting Human Rights Through International Law (2013). See generally Adler, Emanuel, Seizing the Middle Ground: Constructivism in World Politics, 3 Eur. J. Int’l Rel. 319 (1997)CrossRefGoogle Scholar.

⁷ Global Administrative Law Project, supra note 2.

⁸ Stewart, Richard B., Enforcement of Transnational Public Regulation, in Enforcement of Transnational Regulation 41 (Cafaggi, Fabrizio ed., 2012 Google Scholar) (discussing the broad concept of regulation in the global context).

⁹ See Kingsbury, Krisch & Stewart, supra note 3.

¹⁰ Stewart, supra note 8.

¹¹ Sabino Cassese, The Global Polity: Global Dimensions of Polity and the Rule of Law 17–20 (2012); Lorenzo Casini, Beyond the State: The Emergence of Global Administration, in GAL Casebook, supra note 3, at 1.1; see Kenneth W. Abbott & Snidal, Duncan, The Governance Triangle, Regulatory Standards, Institutions and the Shadow of the State, in The Politics of Global Regulation 44 n.8, 59 (Mattli, Walter & Woods, Ngaire eds., 2009)Google Scholar (developing an organizational ecology of the different types of global regulatory bodies that emerged).

¹² Kingsbury, Krisch & Stewart, supra note 3, at 20 (cataloging five types of global administration).

¹³ This approach to distributed administration is followed, for example, by the International Organization for Standardization and the Gold Standard for environmentally sustainable carbon off sets. Information about the Gold Standard is available on its website, at http://www.goldstandard.org.

¹⁴ Such isomorphism is found, for example, in the practices of the Forest Stewardship Council, at https://ic.fsc.org; the Global Fund, at http://www.theglobalfund.org; and the Extractive Industry Transparency Initiative, at http://eiti.org.

¹⁵ On the concept of global administrative space, see Kingsbury, Krisch & Stewart, supra note 3. On the kaleidoscopic character of global regulatory structures, see Weiss, Edith Brown, On Being Accountable in a Kaleidoscopic World, 104 ASIL Proc. 477 (2010)Google Scholar.

¹⁶ Koops, Miriam Lips & Bert-Jaap, Who Regulates and Manages the Internet Infrastructure? Democratic and Legal Risks in Shadow Global Governance, 10 Info. Polity 117, 123–24 (2005)Google Scholar (listing the following ten global bodies that regulate Internet infrastructure: Internet Society (ISOC); Internet Corporation for Assigned Names and Numbers (ICANN); Internet Architecture Board (IAB); Internet Engineering Task Force (IETF); Internet Research Task Force (IRTF); Internet Assigned Numbers Authority (IANA); Protocol Supporting Organization (PSO); Address Supporting Organization (ASO); Domain Name Supporting Organization (DNSO); and Network Solutions).

¹⁷ Raustiala, Kal & Victor, David, The Regime Complex for Plant Genetic Resources, 58 Int’l Org. 277 (2004)Google Scholar; Keohane, Robert & Victor, David, The Regime Complex for Climate Change (Harvard Project on International Climate Agreements, Discussion Paper No. 10-33, 2010)Google Scholar, at http://belfercenter.hks.harvard.edu/files/KeohaneVictor_Final.pdf. Analyses using organizational ecology, which examines how and why institutions evolve and interact in various governance spaces, have sought to trace and explain the development of various types of global bodies in different global policy sectors and their resulting distributions. See Kenneth W. Abbott, Jessica F. Green & Robert O. Keohane, Remarks at the Annual Meeting of the International Studies Association: Organizational Ecology in World Politics: Institutional Density and Organizational Strategies (2013), at http://www.iilj.org/research/documents/Organizational.Ecology.Abbott.Green.Keohane.pdf.

¹⁸ Revesz, Richard L., Federalism and Environmental Regulation: Lessons for the European Union and the International Community, 83 Va. L. Rev. 1331, 1341–45 (1997)CrossRefGoogle Scholar.

¹⁹ “Conceptually... administrative action can be distinguished from legislation in the form of treaties, and from adjudication in the form of episodic dispute settlement between states or other disputing parties.... Global administrative action is rule making, adjudications, and other decisions that are neither treaty-making nor simple dispute settlements between parties.” Kingsbury, Krisch & Stewart, supra note 3, at 17.

²⁰ Examples include the World Bank, the International Monetary Fund, and the World Health Organization. The officials that manage these bodies are supervised and generally selected by a council or other collective group composed of representatives of the body’s members. This arrangement is similar to those in domestic commissions or boards headed by plural authorities.

²¹ Examples include the International Organization for Standardization, Codex Alimentarius Commission, Greenhouse Gas Protocol, World Anti-Doping Agency, Marine Stewardship Council, Global Hydropower Forum, and International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use.

²² de Búrca, Gráinne, Keohane, Robert O. & Sabel, Charles, New Modes of Pluralist Global Governance, 45 N.Y.U.J. Int’l L. & Pol. 723, 738–44 (2013)Google Scholar (on experimentalist governance).

²³ See Scott, Colin, Regulation in the Age of Governance: The Rise of the Post-Regulatory State, in The Politics of Regulation: Institutions and Regulatory Reforms for the Age of Governance 145 (Jordana, Jacint & Levi-Faur, David eds., 2004)Google Scholar; Black, Julia, Paradoxes and Failures: “New Governance” Techniques and the Financial Crisis, 75 Mod. L. Rev. 1037 (2012)CrossRefGoogle Scholar; see also Conner, Tim & Haines, Fiona, Networked Regulation as a Solution to Human Rights Abuse in Global Supply Chains? The Case of Trade Union Rights Violations by Indonesian Sports Shoe Manufacturers, 17 Theoretical Criminology 197 (2013)CrossRefGoogle Scholar.

²⁴ Lupia, Arthur & McCubbins, Mathew, Designing Bureaucratic Accountability, 57 L. & Contemp. Probs. 91, 106–07, 110 (1994)CrossRefGoogle Scholar; Lupia, Arthur & McCubbins, Mathew, Learning from Oversight: Fire Alarms and Police Patrol Reconstructed, 10 J.L. Econ. & Org. 96 (1994)CrossRefGoogle Scholar.

²⁵ See generally Cohen, Mathilde, Reason-Giving in Court Practice: Decision-Makers at the Crossroads, 14 Colum. J. Eur. L. 257 (2008)Google Scholar; Staszewski, Glen, Reason-Giving and Accountability, 93 Minn. L. Rev. 1253 (2009)Google Scholar.

²⁶ See McCubbins, Mathew D., Noll, Roger G. & Weingast, Barry R., Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243 (1987)Google Scholar; Boxing Australia v. AIBA, CAS 2008/O/1455 (Apr. 16, 2008) (Court of Arbitration for Sport invalidating athlete disqualification by Australian Boxing Federation given that decision represented unjustified departure from prior rules) [hereinafter Boxing Australia].

²⁷ Kingsbury, Krisch & Stewart, supra note 3; Stewart, Richard B., U.S. Administrative Law: A Model for Global Administrative Law?, 68 L. & Contemp. Probs. 63 (2005)Google Scholar; see also Global Administrative Law Project, supra note 2.

²⁸ These principles are discussed infra in part I.

²⁹ See, e.g., Balancing Wealth and Health (Rochelle Dreyfuss & César Rodríquez-Garavito eds., 2014); Kapczynski, Amy, The Access to Knowledge Mobilization and the New Politics of Intellectual Property, 117 Yale L.J. 804 (2008)CrossRefGoogle Scholar.

³⁰ The WTO’s practice is critiqued in Howse, Robert, The New Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environmental Debate , 27 Colum. J. Envtl. L. 491 (2002)Google Scholar; Howse, Robert & Regan, Donald, The Product/Process Distinction—An Illusory Basis for Disciplining ‘Unilateralism’ in Trade Policy, 11 Eur. J. Int’l L. 249 (2000)CrossRefGoogle Scholar; see also Skinner, Jonathan, A Green Road to Development: Environmental Regulations and Developing Countries in the WTO, 20 Duke Envtl. L. & Pol’y F. 245, 266 (2010)Google Scholar (noting progress in overcoming disregard in this field).

³¹ Choudhury, Barnali, Recapturing Public Power: Is Investment Arbitration’s Engagement of the Public Interest Contributing to the Democracy Deficit?, 41 Vand. J. Transnat’l L. 775, 792–97 (2008)Google Scholar; Kingsbury, Benedict & Schill, Stephan W., Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law, in 50 Years of the New York Convention 5, 11 (van den Berg, Albert Jan ed., 2009)Google Scholar.

³² See, e.g., Michela Wrong, In the Footsteps of Mr. Kurtz: Living on the Brink of Disaster in Mobutu’s Congo (2002) (detailing how the World Bank and IMF supported Mobutu’s regime in Congo). The World Bank’s programs coincide with government action that harms vulnerable populations, such as the Promoting Basic Services program, which Human Rights Watch has linked to the Ethiopian government’s “villagization” regime of sometimes-violent forced relocation. Human Rights Watch: Abuse-Free Development: How the World Bank Should Safeguard Against Human Rights Violations, 36–39 (July 2013), at http://www.hrw.org/sites/default/files/reports/worldbank0713_ForUpload.pdf.

³³ See Eldar, Ofer, Reform of IMF Conditionality: A Proposal for Self-Imposed Conditionality, 8 J. Int’l Econ. L. 509 (2005)CrossRefGoogle Scholar (proposing that the IMF, rather than imposing austerity conditions through negotiation with borrower country governments, use an open process that allows for public input on the conditions and then give reasons for the conditions ultimately selected).

³⁴ Ramachandra, Komala, Sardar Sarovar: An Experience Retained?, 19 Harv. Hum. Rts. J. 275, 277 (2006)Google Scholar (on Narmada River dams); MacDonald, Erin K., Playing by the Rules: The World Bank’s Failure to Adhere to Policy in the Funding of Large-Scale Hydropower Projects, 31 Envtl. L. 1011, 1034 (2001)Google Scholar (on the World Bank’s violations of its own compensation and participation policies). But see Head, John W., For Richer or for Poorer: Assessing the Criticisms Directed at the Multilateral Development Banks, 52 U. Kan. L. Rev. 241, 288 (2004)Google Scholar (suggesting that multilateral development banks have largely left the dam-building business); Human Rights Watch, supra note 32; Clark, Dana L., The World Bank and Human Rights: The Need for Greater Accountability, 15 Harv. Hum. Rts. J. 205 (2002)Google Scholar.

³⁵ Doyle, Mark, UNS ue dover Haiti Cholera Epidemic, BBCNEWS, Oct. 9, 2013 Google Scholar, at http://www.bbc.co.uk/news/world-latin-america-24457195. The United Nations denied compensation for the resulting harms and has failed to give any serious consideration to establishing a standing administrative system that would provide adequate and assured compensation for wrongful harms that its operations cause. Letter from Patricia O’Brien, Under Secretary General for Legal Affairs, United Nations, to Brian Concannon, Director, Institute for Justice & Democracy in Haiti (July 5, 2013), at http://www.ijdh.org/wp-content/uploads/2013/07/20130705164515.pdf. A standing system for compensation would create caretaking incentives for the United Nations. See José E. Alvarez, The UN in the Time of Cholera, Address at the Annual Meeting of the American Branch of the International Law Association (Oct. 27, 2013) (on file with author) (criticizing UN stonewalling of the problem).

³⁶ Malinowski, Michael J. & Gautreaux, Grant G., All That Is Gold Does Not Glitter in Human Clinical Research: A Law-Policy Proposal to Brighten the Global “Gold Standard” for Drug Research and Development, 45 Cornell Int’l L.J. 185 (2012)Google Scholar (suggesting scientific objections to the ICH’s standards); Wolinsky, Howard, The Battle of Helsinki, 7 EMBO Rep. 670, 671 (2006)CrossRefGoogle ScholarPubMed.

³⁷ In one well-known case, which sparked a decade of debate, an NIH-funded experiment in Thailand gave some participants, pregnant mothers with HIV, placebos instead of drugs that were known to reduce the rate of maternal transmission of the virus. Lurie, Peter & Wolfe, Sidney M., Unethical Trials of Interventions to Reduce Perinatal Transmission of the Human Immunodeficiency Virus in Developing Countries, 337 New Eng. J. Med. 853 (1997)CrossRefGoogle ScholarPubMed. While some bioethicists agree with regulators that their use is acceptable in foreign countries where patients would not otherwise have access to care, the Helsinki Declaration expresses the view of most bioethicists that placebo controls should generally not be used. See World Medical Ass’n, Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects (1964), available at http://www.wma.net/en/30publications/10policies/b3; Center for Biologics Evaluation & Research, U.S. Dep’t of Health & Hum. Servs., Guidance for Industry and FDA Staff: FDA Acceptance of Foreign Clinical Studies Not Conducted Under an IND—Frequently Asked Questions (Mar. 2012), at http://www.fda.gov/downloads/RegulatoryInformation/Guidances/UCM294729.pdf; International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use, ICH Harmonised Tripartite Guideline: Guideline for Good Clinical Practice E 6(R1) (June 10, 1996), at http://www.ich.org/fileadmin/Public_Web_Site/ICH_Products/Guidelines/Efficacy/E6_R1/Step4/E6_R1__Guideline.pdf; see also Goodyear, Michael D. E., Does the FDA Have the Authority to Trump the Declaration of Helsinki?, 338 Brit. Med. J. 1157 (2009)CrossRefGoogle ScholarPubMed (questioning the FDA’s use of the ICH standards); Wolinsky, supra note 36, at 671 (describing the controversies surrounding the Helsinki Declaration, which was the FDA’s former standard).

³⁸ See Harm Schepel, The Constitution of Private Governance; Product Standards in the Regulation of Integrating Markets (2005) (discussing legal remedies in tort, contract, and competition law for this form of disregard).

³⁹ For an overview of the terrorist-listing process and how it has changed over the years, see Forcese, Craig & Roach, Kent, Limping into the Future: The U.N. 1267 Terrorism Listing Process at the Crossroads, 42 Geo. Wash. Int’l L. Rev. 217, 221–27 (2010)Google Scholar. For recent reforms made in response to litigation, including the requirement that a summary of reasons for listing a person or entity must be provided to the listed person or entity, see id. at 243–52.

⁴⁰ Noah Birkhäuser, Address at the European Society of International Law Research Forum: Sanctions of the Security Council Against Individuals—Some Human Rights Problems (May 26, 2005), available at http://www.esil-sedi.eu/sites/default/files/Birkhauser.PDF.

⁴¹ Tens of thousands of Somalis dependent on funds from relatives outside the country could not access these funds because of the sanctions, causing great hardship. Small businesses were forced to close. Al-Barakaat was the largest employer in Somalia. See House of Lords, Select Committee on Economic Affairs, The Impact of Economic Sanctions, 2006–07, H.L. Paper No. 96-II, at 128, para. 39(e), at http://www.publications.parliament.uk/pa/ld200607/ldselect/ldeconaf/96/96ii.pdf; Barise, Hassan, Somali Economy Hit, BBC News, Aug. 27, 2002 Google Scholar, at http://news.bbc.co.uk/2/hi/in_depth/world/2002/september_11_one_year_on/2219680.stm; Barise, Hassan, US Shuts Down Somalia Internet, BBC News, Nov. 23, 2001 Google Scholar, at http://news.bbc.co.uk/1/hi/world/africa/1672220.stm. Sweden petitioned the United States to delist these two Swedish individuals, and the United States and the Security Council eventually acquiesced. U.S. Drops Names of 2 Swedes from Al Qaeda List at U.N., N.Y. Times, Aug. 23, 2002, at http://www.nytimes.com/2002/08/23/world/us-drops-namesof-2-swedes-from-al-qaeda-list-at-un.html. The company’s entry on the UN list was also litigated before the European Court of Justice. Joined Cases C-402/05 & C-415/05, Kadi v. Council, [2008] ECR I-6351 [hereinafter Kadi ].

⁴² de Wet, Erika, The International Constitutional Order, 55 Int’l & Comp. L.Q. 51 (2006)CrossRefGoogle Scholar; Kumm, Mattias, The Legitimacy of International Law: A Constitutionalist Framework of Analysis, 15 Eur. J. Int’l L. 907 (2004)CrossRefGoogle Scholar; Fassbender, Bardo, The United Nations Charter As Constitution of the International Community, 36 Colum. J. Transnat’l L. 529 (1998)Google Scholar; Petersmann, Ernst-Ulrich, How to Reform the UN System? Constitutionalism, International Law, and International Organizations, 10 Leiden J. Int’l L. 421 (1997)CrossRefGoogle Scholar.

⁴³ See Habermas, Jôrgen, The Postnational Constellation and the Future of Democracy, in The Postnational Constellation: Political Essays 58 (Pensky, Max ed. & trans., 2001)Google Scholar. It is important to consider how to generate a theory of global justice or democracy suited for such diverse bodies as the Financial Action Task Force, the Global Competition Network, the International Olympic Committee, the International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use, the Forest Stewardship Council, Interpol, or the International Organization for Standardization.

⁴⁴ This approach informs Amartya Sen, The Idea of Justice (2009).

⁴⁵ For discussion and advocacy of such a strategy in the domestic context, see Chayes, Abram, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev 1281 (1976)CrossRefGoogle Scholar.

⁴⁶ For discussion of the procedural and substantive elements of what constitutes adequate consideration of affected interests by administrative decision makers, see Stewart, Richard B., The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1712–60 (1975)CrossRefGoogle Scholar.

⁴⁷ Procedural disregard may occur without necessarily resulting in substantive disregard.

⁴⁸ For discussion of adequate consideration in the analogous context of an interest representation model of administrative law in the domestic context, see Stewart, supra note 46, at 1756–60.

⁴⁹ Cf.Kingsbury, Benedict, The Concept of ‘Law’ in Global Administrative Law, 20 Eur. J. Int’l L. 23, 31–33 (2009)CrossRefGoogle Scholar (on the concept of publicness).

⁵⁰ Schepel, supra note 38, at 292 (discussing the transfer of monitoring power from public authorities to private bodies).

⁵¹ See Luhmann, Nicklaus, Quod Omnes Tangit: Remarks on Jurge Habermas’s Legal Theory , 17 Cardozo L. Rev. 883 (1996)Google Scholar; Post, Gaines Jr., Studies in Medieval Legal Thought: Public Law and the State 1100–1322, at 163–238 (1964)Google Scholar. I am indebted to John Ferejohn for these references. Luhmann suggests that the quod omnes principle is “absolutely valid.” Luhmann, supra, at 884. He adds: “One says that the Owl of Minerva begins its flight at twilight. How high can she fly.” Id. (explaining that understanding emerges only in retrospect).

⁵² Moravscik, Andrew, The Myth of Europe’s “Democratic Deficit,” 43 Interecon. 331 (2008)Google Scholar. It might, however, be feasible to provide certain forms of decisional or nondecisional participation to affected groups and interests, including through business and professional associations and through NGOs that speak on behalf of environmental, worker, and social interests. Recent theories of international or global democracy share this common theme. See, e.g., Terry Macdonald, Global Stakeholder Democracy 7 (2008). Certain NGO regulatory bodies, most notably the Forest Stewardship Council, follow such a practice. See Meidinger, Erroll E., The Administrative Law of Global Private-Public Regulation: The Case of Forestry, 17 Eur. J. Int’l L. 47 (2006)CrossRefGoogle Scholar.

⁵³ See Revesz, supra note 18.

⁵⁴ E.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000); In re Global Indus. Techs., Inc., 645 F.3d 201 (3d Cir. 2011); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

⁵⁵ Global Administrative Law Project, supra note 2.

⁵⁶ von Bogdandy, Armin, Dann, Philipp & Goldmann, Matthias, Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, 9 Ger. L.J. 1375, 1379–80 (2008)Google Scholar; Matthias Goldmann, A Matter of Perspective: Global Governance and the Distinction Between Public and Private Authority (and Not Law) 11–12 (Nov. 4, 2013) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2260293.

⁵⁷ The thrust of Justice Oliver Wendell Holmes’s remarks in a U.S. Supreme Court case refusing to recognize a constitutional right to be heard in an administrative rule making by a group of taxpayers protesting a decision sharply raising their taxes applies with great force in the global context: “Where a rule of conduct applies to more than a few people it is impractical that everyone should have a direct voice in its adoption.... Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915).

⁵⁸ For example, the administrations of the Kyoto Protocol Clean Development Mechanism and the Voluntary Carbon Scheme do not consider the environmental and social impacts of projects such as industrial tree farms in certifying carbon reductions achieved by such projects. Kylie Wilson, Private Governance of the Voluntary Carbon Offset Market (2014) (unpublished manuscript) (on file with author).

⁵⁹ Schepel, supra note 38, at 285–338.

⁶⁰ See Balancing Wealthand Health, supra note 29; Kapczynski, supra note 29. For discussion of the concept of omitted voices and decisional externalities generated by mission-focused regulators in the context of risk-risk regulatory trade offs, see Wiener, Jonathan Baert & Graham, John D., Resolving Risk Tradeoffs, in Risk vs. Risk: Tradeoffs in Protection Health and the Environment 226 (Graham, John D. & Wiener, Jonathan Baert eds., 1995)Google Scholar.

⁶¹ Benvenisti & Downs, supra note 6.

⁶² This basic argument has also been made by environmental, health, and consumer advocacy groups as well as by scholars, who contend that global regulations reflecting the interests of dominant economic interests have in many cases displaced more stringent domestic regulations, weakening environmental and health protections. See Stewart, Richard B., The Global Regulatory Challenge to U.S. Administrative Law, 37 N.Y.U.J. Int’l L. & Pol. 695, 708 (2006)Google Scholar (describing NGO criticisms); Vogel, David, The Private Regulation of Global Corporate Conduct, in The Politics of Global Regulation 151 (Mattli, Walter & Woods, Ngaire eds., 2009)Google Scholar.

⁶³ Fragmentation of regulatory governance at the domestic level can have similar consequences. See Stewart, Richard B., Madison’s Nightmare, 57 U. Chi. L. Rev. 335 (1990)CrossRefGoogle Scholar. Potential remedies for these structural effects of institutional fragmentation are beyond the scope of this article.

⁶⁴ For discussion of the concept of embedded liberalism in both the domestic and global contexts, see Ruggie, John, Trade, Sustainability and Global Governance, 27 Colum. J. Envtl. L. 297 (2002)Google Scholar; Oshionebo, Evaristius, The U.N. Global Compact and Accountability of Transnational Corporations: Separating Myth from Realities, 19 Fla. J. Int’l L. 1 (2007)Google Scholar; Wynhoven, Ursula A., The Protect-Respect-Remedy Framework and the United Nations Global Compact, 9 Santa Clara J. Int’l L. 81 (2011)Google Scholar.

⁶⁵ E.g., Public Citizen, Global Standard Setting in International Trade 1–3 (2004), available at http://www.citizen.org/trade/harmonization/harmonizatio; Stewart, supra note 62, at 712. However, it has been forcibly argued that global regulatory regimes, including in the areas of free trade and human rights, can enhance domestic democracy. See Keohane, Robert O., Macedo, Stephen & Moravcsik, Andrew, Democracy-Enhancing Multilateralism, 63 Int’l Org. 1 (2009)CrossRefGoogle Scholar.

⁶⁶ See, e.g., NRDC v. EPA, 464 F.3d 1, 20–26 (D.C. Cir. 2006); see also Yoo, John C., Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. 1955 (1999)CrossRefGoogle Scholar; Ku, Julian G., The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 Minn. L. Rev. 71 (2000)Google Scholar; Bradley, Curtis A., International Delegations, the Structural Constitution, and Non-Self-Execution, 55 Stan. L. Rev. 1557 (2003)Google Scholar; Swaine, Edward T., The Constitutionality of International Delegations, 104 Colum. L. Rev. 1492 (2004)CrossRefGoogle Scholar; Keohane, Robert O., Accountability in World Politics, 29 Scandinavian Pol. Stud. 75, 80–81 (2006)CrossRefGoogle Scholar; Stewart, supra note 62, at 709.

⁶⁷ Stewart, supra note 62, at 723.

⁶⁸ Powerful states may be able, on occasion, to promote adoption by global regulatory bodies of policies more favorable to the disregarded along with institutional mechanisms to ensure those policies are carried out, as exemplified by the U.S. congressional pressures that led the World Bank to establish environmental and social guidelines and the Inspection Panel. Yet, these interventions do not amount to a general strategy. Moreover, authoritarian states may exert influences that are not benign.

⁶⁹ Yet where the global human rights and environmental health and safety regulatory regimes are protective of interests that are disregarded at the domestic level, the disregarded seek to lobby available and responsive domestic fora to promote implementation and enforcement of the global rules and decisions.

⁷⁰ Balancing Wealth and Health, supra note 29 (examining the intersection of patent rights and access to medicine).

⁷¹ See, e.g., Ahmed v. H.M. Treasury, [2008] EWCA (Civ) 1187, [2009] 3 WLR 25.

⁷² Balancing Wealth and Health, supra note 29.

⁷³ See, e.g., Jessica F. Green, Rethinking Private Authority: Agents and Entrepreneurs in Global Environmental Governance 132–62 (2013) (Greenhouse Gas Protocol); Patrícia Galva˜o Ferreira, EITI: Using Global Regulation to Address the Domestic Governance Deficitin Resource-Rich Developing Countries (Extractive Industries Transparency Initiative) (2014) (unpublished manuscript) (on file with author); Meidinger, supra note 52.

⁷⁴ Albert O. Hirschman, Exit, Voice and Loyalty (1970).

⁷⁵ Grant, Ruth W. & Keohane, Robert O., Accountability and Abuses of Power in World Politics, 99 Am. Pol. Sci. Rev. 29, 30 (2005)CrossRefGoogle Scholar.

⁷⁶ See Abbott & Snidal, supra note 11, at 59 n.28.

⁷⁷ See Groth, Lauren, Transforming Accountability: A Proposal for Reconsidering How Human Rights Obligations Are Applied to Private Military Security Firms, 35 Hastings Int’l & Comp. L. Rev. 29 (2012)Google Scholar; Slye, Ronald C., The Legitimacy of Amnesties Under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?, 43 Va. J. Int’l L. 173, 182–84 (2002)Google Scholar; Suzuki, Eisuke & Nanwani, Suresh, Responsibility of International Organizations: The Accountability Mechanisms of Multilateral Development Banks, 27 Mich. J. Int’lL. 177 (2005)Google Scholar; Sifris, Ronli, Weighing Judicial Independence Against Judicial Accountability: Do the Scales of the International Criminal Court Balance?, 8 Chi.-Kent J. Int’l Comp. L. 88 (2008)Google Scholar; Clark, supra note 34.

⁷⁸ Chimni, Bhupinder S., Co-option and Resistance: Two Faces of Global Administrative Law, 37 N.Y.U. J. Int’l L. & Pol. 799, 801–06 (2005)Google Scholar.

⁷⁹ These rights may, in some cases, be exercised by representatives who are elected by a given group of organizations or persons, creating electoral accountability between the representatives and the electors.

⁸⁰ Certain forms of nondecisional participation may play an important role in accountability mechanisms, most notably those for legal accountability, which typically confer rights to submit evidence and argument to a tribunal or other body reviewing the global body’s decision or order. They may also include the right (in order to generate a record for review) to submit evidence and argument to the global administrative organ making the initial decision on, for example, blacklisting a contractor charged with corruption or granting refugee status to a person seeking asylum.

⁸¹ For example, in an effort to provide greater participation to its decision-making process, the Basel Committee on Banking Supervision adopted a notice and comment-type procedure. See Michael S. Barr & Miller, Geoffrey P., Global Administrative Law: The View from Basel, 17 Eur. J. Int’l L. 15, 24–26 (2007)Google Scholar (describing the development of notice and comment-type rule makingat the Basel Committee). As Barr and Miller note, while some community groups participated in the process, the most common participants were academics and major industry groups. See id. The comment letters to the Basel consultative documents may be viewed online and confirm the general observations about the composition of participants. See, e.g., Basel Committee on Banking Supervision, Comments Received on the Consultative Document “Capitalisation of Bank Exposures to Central Counter parties” (2011), at http://www.bis.org/publ/bcbs190/cacomments.htm.

⁸² Chimni, Bhupinder S., International Institutions Today: An Imperial Global State in the Making, 15 Eur. J. Int’l L. 1, 19–23 (2004)CrossRefGoogle Scholar; Harlow, Carol, Global Administrative Law: The Quest for Principles and Values, 17 Eur. J. Int’l L. 187, 210 –11 (2006)CrossRefGoogle Scholar.

⁸³ Keohane, Macedo & Moravcsik, supra note 65; see also United States v. Carolene Prods. Co., 304 U.S. 144 (1938); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980); Fox, Gregory H., The Right to Political Participation in International Law, 17 Yale J. Int’l L. 539, 605 (1992)Google Scholar (arguing that the United Nations’ stance on human rights would be undermined if it gave seats to governments that disregarded the result of a monitored election); Ho, Dale, Minority Vote Dilution in the Age of Obama, 47 U. Rich. L. Rev. 1041 (2013)Google Scholar (arguing for continued protections for minority voters in the face of persistent racial polarization and vote dilution); Woolley, Patrick, Rethinking the Adequacy of Adequate Representation, 75 Tex. L. Rev. 571 (1997)Google Scholar (arguing that adequate representation in class actions does not sufficiently protect class members who wish to participate actively in the suit).

⁸⁴ A prominent example of this phenomenon is the permanent membership of the Security Council, which, as scholars have observed, reflects geopolitical calculations of a bygone era. See, e.g., Josephs, Hilary K., Learning from the Developing World, 14 Kan. J.L. & Pub. Pol’y 231, 233 (2005)Google Scholar; Karon, Tony, India’s Security Council Seat: Don’t Hold Your Breath, Time, Nov. 10, 2010 Google Scholar, at http://www.time.com/time/world/article/0,8599,2030504,00.html.

⁸⁵ See Lorenzo Casini, “Down the Rabbit Hole”: The Projection of the Public-Private Distinction Beyond the State (N.Y.U. Jean Monnet Working Paper No. 8, 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2349841; Meidinger, Errol, Competitive Supra governmental Regulation: How Could It Be Democratic?, 8 Chi. J. Int’l L. 513, 522 (2008)Google Scholar.

⁸⁶ For example, the World Heritage Convention, adopted by UNESCO in 1972 and administered by the World Heritage Committee, establishes the criteria that qualify a site for designation and protection as a World Heritage site. Such sites are designated by the World Heritage Committee, composed of representatives of twenty-one states that are parties to the Convention. Three international expert bodies—the International Union for Conservation of Nature, the International Council on Monuments and Sites, and the International Centre for the Study of the Preservation and Restoration of Cultural Property—must provide advice to the Committee on the suitability of candidate sites before designations are made. Although not bound by the advisory bodies’ recommendations, the Committee benefits from their expertise as well as their legitimacy. However, since all states are represented in the advisory bodies, this arrangement may not prevent possible Committee favoritism for well-known sites and more powerful states. See UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 27 UST 37, 1037 UNTS 151, at http://whc.unesco.org/en/convention.

⁸⁷ Eleonora Cavalieri, The Role of Advisory Bodies in the World Heritage Convention, in GAL Casebook, supra note 3, at I.E.15.

⁸⁸ See Green, supra note 73.

⁸⁹ There is scant prospect that disregarded interests could gain a decisional role in the case of distributed administration by domestic regulatory agencies that implement global regulatory norms and decisions. Many such bodies are headed by a single responsible official, leaving no basis for representation of diverse interests in decision making. Even in those agencies with a collegial decisional body, it would be politically unthinkable for domestic legislators to give foreign nations and firms a decisional role. One exception to this generalization is where foreign multinationals pay local army units or police to protect their investments. For an example of resulting tension, see Drew Hinshaw & Chuin-Wei Yap, Arrests in Ghana Stoke Tensions, Wall St. J., June 7, 2013, at http://online.wsj.com/article/SB10001424127887324069104578531183642717120.html.

⁹⁰ See Casini, supra note 85; Meidinger, supra note 85, at 522.

⁹¹ For example, the WTO and Codex Alimentarius Commission.

⁹² Grant & Keohane, supra note 75, at 30.

⁹³ See, e.g., World Trade Organization, The Committee on Trade and Environment (‘Regular’ CTE) (2014), at http://www.wto.org/english/tratop_e/envir_e/wrk_committee_e.htm; Moloo, Rahim, The Quest for Legitimacy in the United Nations: A Role for NGOs?, 16 UCLA J. Int’l L. & Foreign Aff. 1 (2011)Google Scholar.

⁹⁴ The concept of “legitimacy audiences” is discussed in Eran Shamir-Borer, Legitimacy Without Authority in Global Standardization Governance: The Case of the International Organization for Standardization (ISO), in GAL Casebook, supra note 3, at I.C.1.

⁹⁵ Sapra, Seema, The WTO System of Trade Governance: The Stale NGO Debate and the Appropriate Role for Nonstate Actors, 11 Or. Rev. Int’l L. 71, 88 (2009)Google Scholar (describing three instances where the W TO has established consultative schemes for NGOs);see also Spiro, Peter J., Accounting for NGOs, 3 Chi. J. Int’l L. 161, 167 (2002)Google Scholar (noting that major NGOs “already effectively have a seat at the table”). Cf.Smyth, Sophie, NGOs and Legitimacy in International Development, 61 U. Kan. L. Rev. 377, 434–36 (2012)Google Scholar (on the “exclusion norm” that NGOs face, inhibiting participation).

⁹⁶ Leal-Arcas, Rafael, The EU Institutions and Their Modus Operandi in the World Trading System , 12 Colum. J. Eur. L. 125, 141–44 (2005)Google Scholar (on attempts to improve civil society engagement).

⁹⁷ See Cho, Sungjoon & Kelly, Claire R., Are World Trading Rules Passé?, 53 Va. J. Int’l L. 623, 664–65 (2013)Google Scholar (on the complexity of today’s global supply chains and the marginalization of nonstate actors in the system).

⁹⁸ See Meidinger, supra note 85, at 530–31.

⁹⁹ Lin, Li-Wen, Corporate Social Accountability Standards in the Global Supply Chain: Resistance, Reconsideration, and Resolution in China, 15 Cardozo J. Int’l & Comp. L. 321, 346–47 (2007)Google Scholar (reviewing criticisms of global supply chain reforms).

¹⁰⁰ “Relatively neutral government officials who are aware of the larger social trade-offs surrounding decision making on a particular issue will produce more democratic outcomes than decisions shaped primarily by deeply interested private citizens—even those acting with substantial knowledge of the issue and the best of intentions.” Anne-Marie Slaughter, A New World Order 224 (2004).

¹⁰¹ The lack of global redistributional mechanisms may, however, require global regulatory bodies to give greater weight to the distributional impacts of their decisions than similar domestic regulatory bodies. Moreover, welfare maximizing considerations may well not justify the imposition of foreseeable and targeted harms on particular persons and discrete groups, such as asserted terrorist financiers denied the right to travel or indigenous communities wiped out by internationally funded development projects.

¹⁰² The Forest Stewardship Council (FSC) does not allow government agencies or officials to become members, though governments can participate in standard-setting and observe in the FSC General Assembly. Each stakeholder, when applying for membership, selects either the environmental, social, or economic chamber, and the subchamber depends on whether legal registration is in a high-income country (North) or low-income country (South), per World Bank definitions. Individual members comprise 10% of the vote in each chamber, and organizations comprise the remaining 90%. The subchamber divisions into North and South are intended “to guarantee equal weight of vote and influence among the various countries and economic powers represented,” FSC, Frequently Asked Questions (2014), at https://us.fsc.org/download.membership-faqs.130.pdf.

¹⁰³ Some proponents of global constitutionalism suggest that emerging, generally applicable substantive and procedural norms for governance exist that might assure proper representation—or other means for adequate consideration—of affected societal interests, but thus far these suggestions remain highly abstract and fail to provide helpful guidance on redesign of global institutions.

¹⁰⁴ Administrative and regulatory authorities in European countries and the European Union operate within neo-corporatist traditions and practices that enable them to recruit labor unions, trade associations, professional groups, environmental and consumer NGOs, and other groups that governments have recognized as authoritative representatives of the interests in question. This practice is neither generally feasible nor likely desirable in the emergent and fluid circumstances of global regulation.

¹⁰⁵ Meidinger, supra note 52; Meidinger, supra note 85, at 530–31.

¹⁰⁶ Dingwerth, Klaus, North-South Parity in Global Governance: The Affirmative Procedures of the Forest Stewardship Council, 14 Global Governance 53, 61–64 (2008)Google Scholar. In his study of the FSC, Dingwerth found that procedures adopted to promote greater regard for Southern interests did not close the gap in effective influence between the global North and South. Standards disproportionately favored Northern interests. Furthermore, although some areas in the global South were well represented, their representation might lack the resources or ability to influence decisions. He concludes that a broader array of governance arrangements is needed to solve the problem of disregard. Id. at 61– 64, 66–67.

¹⁰⁷ Comitology is a process of the European Union for developing harmonized regulatory standards for specific sectors in order to implement EU legislation. Participants include the European Commission, which chairs the process, and representatives of the member states and experts. See Joerges, Christian, Bargaining to Deliberative Political Processes: The Constitution alisation of Comitology, 3 Eur. L.J. 273 (1997)CrossRefGoogle Scholar; Joerges, Christian, “Good Governance” Through Comitology?, in EU Committees: Social Regulation, Law and Politics 311 (Joerges, Christian & Vos, Ellen eds., 1999)Google Scholar; Neyer, Jôrgen, Discourse and Order in the EU, 41 J. Common Mkt. Stud. 687 (2003)CrossRefGoogle Scholar. On experimentalist governance, see Sabel, Charles F. & Zeitlin, Jonathan, Learning from Difference: The New Architecture of Experimentalist Governance in the EU, 14 Eur. L.J. 271, 274 (2008)CrossRefGoogle Scholar (arguing that the Open Method of Coordination “give[s] precise definition” to deliberation); Cohen, Joshua & Sabel, Charles, Directly-Deliberative Polyarchy, 3 Eur. L.J. 313 (1997)CrossRefGoogle Scholar; Cohen, Joshua & Sabel, Charles F., Global Democracy?, 37 N.Y.U. J. Int’l L. & Pol. 763 (2005)Google Scholar.

¹⁰⁸ See Pollack, Mark A., Control Mechanism or Deliberative Democracy? Two Images of Comitology, 36 Comp. Pol. Stud. 125 (2003)CrossRefGoogle Scholar; Szewczyk, Bart M. J., European Citizenship and National Democracy: Contemporary Sources of Legitimacy of the European Union, 17 Colum. J. Eur. L. 151, 184 (2011)Google Scholar. See generally Zhong, Chen-Bo, The Ethical Dangers of Deliberative Decision Making, 56 Admin. Sci. Q. 1 (2011)CrossRefGoogle Scholar; Morrell, Michael E., Deliberation, Democratic Decision-Making and Internal Political Efficiency, 27 Pol. Behav. 49 (2005)CrossRefGoogle Scholar; Kuran, Timur, Insincere Deliberation and Democratic Failures, 12 Critical Rev. 529 (1998)CrossRefGoogle Scholar. Armstrong, Kenneth & Kilpatrick, Claire, Law, Governance, or New Governance? The Changing Open Method of Coordination, 13 Colum. J. Eur. L. 649, 658–61 (2007)Google Scholar (noting the difference between the ideal of the Open Method of Coordination (OMC) and its practice); Idema, Timo & Keleman, R. Daniel, New Modes of Governance, the Open Method of Co-ordination and Other Fashionable Red Herring, 7 Persp. Eur. Pol. & Soc’y 108, 110 (2006)CrossRefGoogle Scholar (questioning the ideal of the OMC and its ability to enhance the legitimacy of EU policy making, and questioning the OMC’s ability to promote deliberation).

¹⁰⁹ See Craik, Neil, Deliberation and Legitimacy in Transnational Governance: The Case of Environmental Impact Assessments, 38 Victoria U. Wellington L. Rev. 381, 386, 390 (2007)Google Scholar (distinguishing deliberation as less vulnerable to differences in bargaining power than aggregative models, and suggesting that using deliberative processes in science-based decisions may address power differentials between experts and nonexperts).

¹¹⁰ See Ayelet Berman, The Role of Domestic Administrative Law in the Transnational Regulatory Networks (Centre for Trade and Economic Integration Working Paper No. CTEI-2011-08, 2011), available at http://graduate institute.ch/files/live/sites/iheid/files/sites/ctei/shared/CTEI/working_papers/CTEI-2011-08.pdf (discussing the International Conference on Harmonisation (ICH) standards for pharmaceutical safety testing, set by representatives of EU, U.S., and Japanese regulators and major pharmaceutical companies, which author considers inadequate for consumer and developing-country interests); see also Sarah Molinoff, Shifting Standards in FDA Regulation of Foreign Clinical Trials (2012) (unpublished manuscript) (on file with author) (finding that ICH standards allowing use of placebos in clinical trials reflects dominant influence of interests of the pharmaceutical manufacturers and EU, U.S., and Japanese regulators, disregarding ethical concerns of global medical and medical research bodies and some developing countries).

¹¹¹ at http://www.ghgprotocol.org; see also Jessica F. Green, Rethinking Private Authority: Agents and Entrepreneurs in Global Environmental Governance (2013).

¹¹² at http://eiti.org.

¹¹³ Meidinger, supra note 85.

¹¹⁴ An analogous development has occurred in the Codex Alimentarius Commission where civil society organization representatives, including business representatives and NGOs, must obtain the right to attend and speak at meetings where government representatives decide on Codex standards. Some observers, however, find that Codex decisions on standards still unduly favor producer interests.See Livermore, Michael, Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation, and the Codex Alimentarius, 81 N.Y.U. L. Rev. 766, 784–86 (2006)Google Scholar.

¹¹⁵ Mulgan, Richard, “Accountability”: An-Ever-Expanding Concept?, 78 Pub. Admin. Rev. 555 (2000)CrossRefGoogle Scholar, quoted in Carol Harlow, Accountability in the European Union 1 (2002).

¹¹⁶ Id.

¹¹⁷ Mashaw, Jerry L., Structuring a “Dense Complexity”: Accountability and the Project of Administrative Law, 5(1) Issues in Legal Scholarship Art. 4 (Mar. 2005)Google Scholar, available at http://iilj.org/courses/documents/Mashaw.IssuesinLegalScholarship.pdf.

¹¹⁸ Jonathan Koppell posits that disagreement about the meaning of accountability is “masked by consensus on its importance and desirability.” Koppell, Jonathan, Pathologies of Accountability: ICANN and the Challenge of “Multiple Accountability Disorder, “ 65 Pub. Admin. Rev. 94, 94 (2005)CrossRefGoogle Scholar. Nevertheless, analysis of the concept of accountability within public administration is important because “conflicting expectations borne of disparate conceptions of accountability undermine organizational effectiveness.” Id. For a dissection of the concept of accountability based on the actors involved and the way in which they interact, see Bovens, Mark, Analysing and Assessing Accountability: A Conceptual Framework, 13 Eur. L.J. 447 (2007)CrossRefGoogle Scholar; see also Rose-Ackerman, Susan, Regulation and Public Law in Comparative Perspective, 60 U. Toronto L.J. 519, 523 (2010)CrossRefGoogle Scholar (arguing for three kinds of accountability that support legitimacy: effective performance of government programs, protection of human rights, and creation of democratically supported policies); Bignami, Francesca, From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law, 59 Am. J. Comp. L. 859, 872 n.32 (2011)CrossRefGoogle Scholar (finding four kinds of accountability relations in domestic public administration: relations with elected politicians, organized interests, courts, and the public; and arguing that the transnational dimension operates in the same way); Jonathan G. S. Koppell, World Rule: Accountability, Legitimacy, and the Design of Global Governance 31 (2010) (arguing for five kinds of accountability: transparency, liability, controllability, responsibility, and responsiveness).

¹¹⁹ These essential elements are broadly consistent with those identified by Grant and Keohane and by Mashaw, although these authors characterize a much broader range of measures as involving accountability. I argue below that this broader application is inconsistent with the core definition of accountability that they embrace. Bovens defines accountability more narrowly as a relationship between an actor and a forum in which the actor must explain and justify his conduct, in which the forum can ask questions and judge the conduct, and in which the actor may face consequences. Bovens, supra note 118, at 447. Bovens’s taxonomy of accountability relations stems from three questions: who is giving account, to whom the actor is giving account, and what kind of conduct is in question. Id. at 450.

¹²⁰ Grant & Keohane, supra note 75.

¹²¹ Richard Mulgan, Holding Power to Account: Accountability in Modern Democracy (2003).

¹²² Bovens, supra note 118, at 448.

¹²³ Mashaw, supra note 117; see also, e.g., Scott, Colin, Accountability in the Regulatory State, 27 J.L. & Soc’y 38 (2000)CrossRefGoogle Scholar.

¹²⁴ For discussion of accountability in the context of the European Union, see Mulgan, supra note 115.

¹²⁵ Int’l l. Ass’n, Accountability of International Organizations, Final Report (2004), available at http://www.ila-hq.org/en/committees/index.cfm/cid/9 [hereinafter ILA Final Report]; Symposium on Accountability in the International Legal Order, 2005 Neth. Y.B. Int’l L 1 Google Scholar; Curtin, Deirdre & Nollkaemper, André, Conceptualizing Accountability in International and European Law, 2005 Neth. Y.B. Int’l L 3 Google Scholar; Dekker, Ige F., Making Sense of Accountability in International Institutional Law, 2005 Neth. Y.B. Int’l L 83 Google Scholar.

¹²⁶ E.g., Black, supra note 23; Scott, supra note 23.

¹²⁷ While examining the accountability of International Election Monitors, Anne van Aaken and Richard Chambers describe an accountability process that hinges on reason giving. van Aaken, Anne & Chambers, Richard, The Accountability and Independence of International Election Observers, 6 Int’l Org. L. Rev. 541 (2009)Google Scholar.

¹²⁸ See Schedler, Andreas, Conceptualizing Accountability, in The Self-Restraining State: Power and Accountability in New Democracies 14 (Schedler, Andreas, Diamond, Larry & Plattner, Marc F. eds., 1999)Google Scholar (“[T]he notion of political accountability carries two basic connotations: answerability, the obligation of public officials to inform about and to explain what they are doing; and enforcement, the capacity of accounting agencies to impose sanctions on power holders who have violated their public duties.”).

¹²⁹ In proposing a strictly hierarchical view of accountability, Edward Rubin argues that elections are not accountability mechanisms. Rubin, Edward, The Myth of Accountability and the Anti-Administrative Impulse, 103 Mich. L. Rev. 2073, 2075 (2005)Google Scholar. Concededly, elections are at best imperfect and at worst actually diminish democratic accountability. That an accountability mechanism is failing or is inefficient does not, however, signify that it is no longer an accountability mechanism.

¹³⁰ “Every citizen shall have the right and the opportunity... to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” International Covenant on Civil and Political Rights, Art. 25, Dec. 16, 1966, 999 UNTS 171; see Issacharoff, Samuel, Groups and the Right to Vote, 44 Emory L.J. 869 (1995)Google Scholar; Issacharoff, Samuel, Polarized Voting and the Political Process, 90 Mich. L. Rev. 1833 (1992)CrossRefGoogle Scholar.

¹³¹ The right of voters to register their preferences without having to revealor account for them may be important. Ferejohn, John, Incumbent Performance and Electoral Control, 50 Pub. Choice 5 (1986)CrossRefGoogle Scholar. Historically, electoral mechanisms can be coupled with other forms of accountability, particularly legal accountability, which is described in further detail infra. For example, in ancient Athens, certain public offices were required to submit to an end-term audit for how they performed in public office and were subject to impeachment while in office, both before public tribunals. See R. K. Sinclair, Democracy and Participation in Athens 78–80 (1988). It should be noted that the selection of magistrates in ancient Athens was partially done by lottery, and thus the system bears marked differences to modern systems of government. See id. at 17–18.

¹³² Fiscal accountability often operates in conjunction with hierarchical, supervisory, or legal accountability. But because the concept of accountability originated in rendering account in financial matters, fiscal accountability has distinct and specialized traditions, standards, and procedures and accordingly is retained in this analysis as a separate category.

¹³³ In some cases, the grantor may also invoke legal accountability mechanisms to obtain additional redress against the grantee. Grantees may also some cases be able to assert legal claims against the grantor for breach of contract.

¹³⁴ See, e.g., Scott, supra note 123, at 40–41 (noting that the concept of accountability must address the increasing number of tribunals).

¹³⁵ Cassese, Sabino, Administrative Law Without the State? The Challenge of Global Regulation, 37 N.Y.U. J. Int’l L. & Pol. 663, 669 (2005)Google Scholar (noting the relative importance of independent decision-making committees in global administrative law compared to domestic administrative law); Bogdandy, Dann & Goldmann, supra note 56, at 1385–86 (arguing that when institutions make determinations, they are exercising public authority).

¹³⁶ See Kingsbury, Benedict, Weighing Global Regulatory Rules and Decisions in National Courts, 2009 Act a Juridica 90, 99Google Scholar.

¹³⁷ Jaffe, Louis, Judicial Control of Administrative Action 235–40 (1965)Google Scholar.

¹³⁸ See Brunnée, Jutta, International Legal Accountability Through the Lens of Law of State Responsibility, 2005 Neth. Y.B. Int’l L. 3, 21Google Scholar (discussing limitations of international law principles regarding the responsibility and liability in securing accountability for international organizations).

¹³⁹ Schepel, supra note 38.

¹⁴⁰ See Mitchell, Ronald B., Compliance Theory: Compliance, Effectiveness, and Behavior Change in International Environmental Law, in The Oxford Handbook of International Environmental Law 893, 900, 910 (Bodansky, Daniel, Brunnée, Jutta & Hey, Ellen eds., 2008)Google Scholar.

¹⁴¹ R. v. Horncastle, [2009] UKSC 14, [2010] 2 A.C. 373 (UK), at http://www.supremecourt.uk/decided-cases/docs/UKSC_2009_0073_Judgment.pdf; Abdelrazik v. Canada (Minister of Foreign Affairs) (2009), [2010] 1 F.C.R. 267; Kadi, supra note 41.

¹⁴² See Talihärm, Anna-Maria, Human Rights and Counterterrorism, in Capacity Building in the Fight Against Terrorism 18, 25 (Gôrbôz, Ug˘ur ed., 2013 Google Scholar) (noting that since 2011 the UN Security Council’s Al Qaida Sanctions Committee publishes narratives explaining why individuals or entities have been listed, increasing transparency—a result of the Kadi decision and similar cases); Casini, Lorenzo, The Making of a Lex Sportiva by the Court of Arbitration for Sport , 12 German L.J. 1317, 1319 (2011)Google Scholar (defining lex sportiva as the judge-made principles and rules of sport law).

¹⁴³ See Clark, Dana, Understanding the World Bank Inspection Panel, in Demanding Accountability: CivilSociety Claims and the World Bank Inspection Panel 1, 1 (Clark, Dana, Fox, Jonathan & Treakle, Kay eds., 2003)Google Scholar; The Struggle for Accountability: The World Bank, NGOs and Grassroots Movements (Jonathan Fox & L. David Brown eds., 2000).

¹⁴⁴ Vogel, David, Private Regulation of Global Corporate Conduct, in The Politics of Global Regulation 151 (Mattli, Walter & Woods, Ngaire eds., 2009)Google Scholar; Cafaggi, Fabrizio, New Foundations of Transnational Private Regulation, 38 J.L. Soc’y 20, 38 (2011)CrossRefGoogle Scholar; Carney, Michael, Globalization and the Renewal of Asian Business Networks, 22 Asia Pac. J. Mgmt. 337, 344 (2005)CrossRefGoogle Scholar (discussing social responsibility statements and compliance monitors).

¹⁴⁵ See Lupia & McCubbins, Learning from Oversight: Fire Alarms and Police Patrol Reconstructed, supra note 24.

¹⁴⁶ See Jaffe, supra note 137, at 329 –34; Edith Henderson, Foundations of English Administrative Law; Certiorari and Mandamus in the Seventeenth Century (1963).

¹⁴⁷ See Goldstein, Judith & Steinberg, Richard, Regulatory Shift: The Rise of Judicial Liberalization at the W TO, in The Politics of Global Regulation 211 (Mattli, Walter & Woods, Ngaire eds., 2009)Google Scholar.

¹⁴⁸ Koppell, supra note 118.

¹⁴⁹ Grant and Keohane, for example, identify the following accountability mechanisms: hierarchical, supervisory, fiscal, legal, market, peer reputational, and public reputational. Grant & Keohane, supra note 75, at 36, Tbl.2; Mashaw, supra note 117, at 27, Fig. 1 (identifying political, administrative, legal, product market, labor market, financial market, family, professional, and team accountability). Similar to that of Grant and Keohane, Mashaw’s framework divides human relations and their fnonding accountability mechanisms into three categories: state governance, private markets, and social networks. However, the analysis in this paper focuses on the governance of regulatory authorities.

¹⁵⁰ Mulgan and Rubin restrict accountability to hierarchical relations. Mulgan, supra note 116, at 571; Rubin, supra note 129, at 2074.

¹⁵¹ Grant & Keohane supra note 75, at 35–40.

¹⁵² Market-Based Governance: Supply Side, Demandside, Upside, and Downside (Donahue, John D. & Nye, Joseph S. Jr. eds., 2002)Google Scholar (arguing for a market-based approach for pursuing the goals of governance).

¹⁵³ Grant & Keohane, supra note 75, at 37.

¹⁵⁴ Id. at 36.

¹⁵⁵ See, e.g., Harlow, supra note 115, at 10, 12 (open decision making and freedom of information practices represent “a continual process of ‘giving an account’ to an informed and active civil society”); High-Level Panel on IMF Board Accountability, Key Findings and Recommendations (2007), available at http://www.new-rules.org/about-new-rules/publications/37-key-findings-and-recommendations-of-the-high-levelpanel-on-imf-board-accountability; see also Gartner, David, Uncovering Bretton Woods: Conditional Transparency, the World Bank, and the International Monetary Fund, 45 Geo. Wash. Int’l L. Rev. 121 (2013)Google Scholar; Morgan, Bronwen, Technocratic v. Convivial Accountability, in Public Accountability: Designs, Dilemmas and Experiences 243 (Dowdle, Michael W. ed., 2006)Google Scholar.

¹⁵⁶ See, e.g., Grant & Keohane, supra note 75, at 31 (participation being a form of accountability through which “the performance of power wielders is evaluated by those affected by their actions”); id. at 37 (noting that the World Bank extols “participatory accountability”); ILA Final Report, supra note 125, at 9.

¹⁵⁷ ILA Final Report, supra note 125, at 13.

¹⁵⁸ Decisional participation is involved in the exercise of decisional authority, as contrasted with rendering account for decisions previously made.

¹⁵⁹ For example, in legal accountability mechanisms, such as reviews of administrative decisions, those securing review enjoy the right to participate in hearings before the reviewing body, such as the ILO Administrative Tribunal, the World Bank Inspection Panel, and the Aarhus Compliance Committee. Also, the opportunity to build a record by submitting evidence and argument to the administrative decision-making body may be critical in securing effective review by a tribunal of its decision.

¹⁶⁰ In this regard, it is important to distinguish between the rules and institutions that form and constitute markets, such as contract law, the law of business associations, and competition law, and the ability for market competition to effect change in market participants. The constitutive rules of marketplaces may well use accountability mechanisms (alongside decisional rules and other mechanisms) to set the rules of the game. But this question is separate from whether a consumer’s choice between different brands of shoes, for example, forms an accountability relationship between the consumer and supplier.

¹⁶¹ Mashaw, supra note 117, at 16 (quoting Webster’s New Collegiate Dictionary (1959)).

¹⁶² Albert Hirschman, Exit, Voice and Loyalty (1970). Thus, market actors are literally not accountable either to their existing contractual partners unless the latter can assert tort or contract claims against them (legal accountability) or to their potential customers. of course the relevant contractual relationships may give rise to legal accountability. And markets may spawn governance structures, such as corporations or trust indentures, that enable some market partners, such as shareholders or bondholders, to exercise supervisory or fiscal accountability mechanisms. But these structures are distinct from market disciplines based on market choice.

¹⁶³ Global regulatory bodies increasingly enlist representatives of their members for review and evaluation by members of other members’ compliance or performance, a practice followed, for example, by the International Atomic Energy Agency, Financial Action Task Force, Organisation for Economic Co-operation and Development, and WTO. This process represents an important and growing practice of supervisory accountability. Professional organizations may, in some cases, have fixed procedures and standards for evaluation and sanctioning or reward, such as professional disciplinary procedures for lawyers and doctors, election to professional societies, or acceptance of papers for publication in peer-reviewed journals.

¹⁶⁴ I am indebted to Bob Keohane for reminding me of the passage on the meaning of words in Alice in Wonderland:

¹⁶⁵ Scott, supra note 123, at 40.

¹⁶⁶ One could attempt to maintain the distinction by having two or more different concepts of accountability, but in practice this option risks blurring the distinction. It is far more clear and straightforward to restrict the accountability label in the first instance.

¹⁶⁷ Harlow, supra note 115, at 27, 184. As Bovens states, the concept of accountability needs saving from those who promote it. Bovens, supra note 118, at 449 (citing Melvin J. Dubnick, Seeking Salvation for Accountability, Remarks at the Annual Meeting of the American Political Science Association (2002), available at http://mjdub nick.dubnick.net/papers/2002/salv2002.pdf).

¹⁶⁸ The three pillars of the Aarhus Convention are (1) public access to information, (2) public participation in decision making, and (3) availability to the public of administrative or legal review procedures. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Art. 1, July 25, 1998, 38 ILM 517 (1999) [hereinafter Aarhus Convention]. The Aarhus Convention is applicable to environmentally significant domestic agency decisions by states party to the Convention. In many cases, the environmental consequences of these decisions extend to other states or to a global commons. The Convention provides that it may also be applied to international organizations that function as administrative bodies. Id., Art. 9. On global administrative law generally, see Kingsbury, Krisch & Stewart, supra note 3.

¹⁶⁹ See generally Meidinger, supra note 85.

¹⁷⁰ One can view multinational firms, operating through contractual networks in global supply chains, as private regulators. The global regulatory bodies discussed in the text effectively recruit these private regulators to advance their social and environmental goals.

¹⁷¹ Abbot & Snidal, supra note 11, at 47, 58 (outlining a “decentralized process of competition for influence” and arguing that firms enjoy leverage over regulators because of the ease of relocation across states).

¹⁷² Meidinger, supra note 52, at 86; Meidinger, Errol, Multi-Interest Self-Governance Through Global Product Certification Programmes, in Responsible Business: Self-Governance and Law in Transnational Economic Transactions 259, 262 (Dilling, Olaf, Herberg, Martin & Winter, Gerd eds., 2008)Google Scholar (noting that, in the forestry sector, different certification programs “observe, mimic, compete, communicate, negotiate, and adapt to each other”).

¹⁷³ The Fair Labor Association, at http://www.fairlabor.org (certifying and monitoring apparel industry supply chains to alleviate concerns about sweatshop practices); The Forest Stewardship Council (FSC), at https://us.fsc.org. Roberts, Tracy M., The Rise of Rule Four Institutions: Voluntary Standards, Certification and Labeling Systems, 40 Ecology L.Q. 107, 147–48 (2013)Google Scholar (on the FSC and the Fair Labor Association and its industry-funded competition).

¹⁷⁴ Goodman & Jinks, supra note 6; Martha Finnemore, National Interests in International Society (1996); Understanding Social Action, Promoting Human Rights (Derek Jinks & Andrew K. Woods eds., 2012); see also Ruggie, John Gerard, What Makes the World Hang Together? Neo-utilitarianism and the Social Constructivist Challenge, 52 Int’l. Org. 855 (1998)CrossRefGoogle Scholar.

¹⁷⁵ Grant & Keohane, supra note 75, at 37.

¹⁷⁶ Id. at 36.

¹⁷⁷ See, e.g., Green, supra note 111.

¹⁷⁸ It may include various categories of information, including decisions, policy statements, reports, internal documents, minutes, proceedings transcripts, and organized data.

¹⁷⁹ See Hale, Thomas N., Transparency, Accountability, and Global Governance, 14 Global Governance 73, 74, 77–81, 84 (2008)Google Scholar.

¹⁸⁰ This effect can be strengthened when an accountability mechanism also exists. For example, World Bank managers have altered development projects once an Inspection Panel complaint is brought without going through the hearing process when the information disclosed indicates a problem. Id. at 84 (noting that “in over half the cases brought before the panel, the mere release of information has actually changed Bank behavior”).

¹⁸¹ Albert Venn Dicey, Lectures on the Relation Between Law and Public Opinion in England: During the Nineteenth Century (2d ed. 1962).

¹⁸² Buchanan, Allen & Keohane, Robert O., The Legitimacy of Global Governance Institutions, 20 Ethics & Int’l Aff. 405, 425–26 (2006)CrossRefGoogle Scholar.

¹⁸³ Id. at 427.

¹⁸⁴ See Imbeau, Louis M., Transparency in the Budget Process of a Bureaucratic Organisation: A Principal-Agent Model of Budgeting, in The Economics of Transparency in Politics 189, 189–90 (Breton, Albert, Galeotti, Gianluigi, Salmon, Pierre & Wintrobe, Ronald eds., 2007)Google Scholar (discussing Weber’s work).

¹⁸⁵ Elster, Jon, Introduction, in Deliberative Democracy 6 (Elster, Jon ed., 1998)CrossRefGoogle Scholar (defining pure bargaining as a system that results in outcomes determined by the “resources [of the parties] that enable them to make credible threats and promises”).

¹⁸⁶ Katharina Gnath, Stormy-Annika Mildner & Schmucker, Claudia, G20, IMF, and WTO in Turbulent Times: Legitimacy and Effectiveness Put to the Test 28 (SWP Research Paper No. 10, 2012)Google Scholar, available at http://www.swpberlin.org/fileadmin/contents/products/research_papers/2012_RP10_Gnath_mdn_Schmucker.pdf (“[N]egotiations between WTO members take place behind closed doors. The scope for difficult compromises between negotiating partners has already shrunk under the watchful eye of the public. If negotiations were opened up still further, compromise would be all but impossible.”).

¹⁸⁷ See World Health Organization, Implementation of the International Health Regulations, Report of the Review Committee on the Functioning of the International Health Regulations (2005) in Relation to Pandemic (H1N1) 2009, A 64/10, at 16–18, 78 (May 5, 2011), at http://apps.who.int/gb/ebwha/pdf_files/WHA64/A64_10-en.pdf. I am grateful to Megan Donaldson and Benedict Kingsbury for this example.

¹⁸⁸ Birkinshaw, Patrick, Freedom of Information and Openness: Fundamental Human Rights?, 58 Admin. L. Rev. 177, 192 (2006)Google Scholar (“Efficient government means that government needs space to formulate its policies in private and to consider alternatives; publicity may inhibit that process.”); Dawson, Mark, Transforming into What? New Governance in the EU and the “Managerial Sensibility” in Modern Law, 2010 Wis. L. Rev. 389, 428Google Scholar (arguing that the benefit of increased legitimacy outweighs the efficiency costs of transparency for the Open Method of Coordination process).

¹⁸⁹ See Donaldson, Megan & Kingsbury, Benedict, The Adoption of Transparency Policies in Global Governance Institutions: Justifications, Effects, and Implications, 9 Ann. Rev. L. & Soc. Sci. 119 (2013)CrossRefGoogle Scholar (examining the influences that have led to wider adoption of transparency measures by global regimes and their effects on states, nonstate actors, and global governance institutions, and the global structures of global power and authority and global administrative law).

¹⁹⁰ In certain adjudicatory proceedings in some legal systems, this form of participation includes the right to present evidence through witnesses and cross-examine the witnesses presented by other parties. It may also include the opportunity for affected third-party interests, such as disregarded interests, to submit amicus briefs. See, e.g., Howse, Robert, Membership and Its Privileges: The W TO, Civil Society, and the Amicus Brief Controversy, 9 Eur. L.J. 496 (2003)CrossRefGoogle Scholar. In adjudications, review is generally available; in such cases, participation rights form part of alegal accountability mechanism.

¹⁹¹ In legal accountability, the right to present evidence and argument to an administrative agency or court in one’s own case is essential to securing effective judicial review of the resulting decision. Under requirements for exhaustion of administrative remedies, such presentation may be required as a prerequisite to securing judicial review. Presentation of evidence and argument to boards of directors or trustees may likewise be essential to obtaining judicial redress for violation of fiduciary duty. The opportunity to review and comment on draft accounting statements and audits promotes fiscal accountability. The opportunity of superiors or supervisors to consult and comment on regarding upcoming decisions by subordinates or supervisees promotes hierarchical and supervisory responsibility. Participation in legislative or administrative decisions can also enhance electoral accountability by enabling participants to evaluate the consequent responsiveness of government decision makers to their views, values, and interests.

¹⁹² Bexell, Magdalena, Tallberg, Jonas & Uhlin, Anders, Democracy in Global Governance: The Promises and Pitfalls of Transnational Actors, 16 Global Governance 81 (2010)Google Scholar; Charnovitz, Steve, The Illegitimacy of Preventing NGO Participation, 36 Brook. J. Int’l L. 891 (2011)Google Scholar; Gartner, David, Beyond the Monopoly of States, 32 U. Pa. J. Int’l L. 595 (2010)Google Scholar; Smyth, supra note 95.

¹⁹³ Decisional participation is also not an accountability mechanism, but for a different reason. Accountability relations involve a separation between the person or entity who makes decisions (the accounter) and the person whose interests are affected thereby (the account holder). If a person is a decision maker, to that extent he cannot demand accountability for such decisions.

¹⁹⁴ The discussion of the deliberative, consensus-based process in part III notes that this practice—allowing observers to attend committee meetings at which decisions are discussed and made, such as in the committee of the Codex Alimentarius Commission—may morph into a form of decisional participation by such observers as they become engaged in the deliberative process. Therefore the line between decisional and nondecisional participation may blur in practice. For discussion of the role of industry representatives and of environmental health and safety NGOs in the decisional processes of Codex, see Livermore, supra note 114.

¹⁹⁵ See Charnovitz, supra note 192; Golubovic, Dragan, An Enabling Framework for Citizen Participation in Public Policy: An Outline of Some of the Major Issues Involved, 12 Int’l J. Not-for-Profit L. 38 (2010)Google Scholar; Stewart, supra note 46.

¹⁹⁶ See Stewart, supra note 46; Stewart, Richard B., Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of Federal Environmental Controls, 86 Yale L.J. 1196 (1977)CrossRefGoogle Scholar.

¹⁹⁷ See Balancing Wealth and Health, supra note 29.

¹⁹⁸ Stewart, Richard B., GMO Trade Regulation and Developing Countries, 2009 Acta Juridica 320.Google Scholar

¹⁹⁹ See Stewart, Richard B. & Ratton-Sanchez, Michelle, The World Trade Organization: Multiple Dimensions of Global Administrative Law, 9 Int’l J. Const. L. 556, 585–86 (2011)Google Scholar.

²⁰⁰ Tom Tyler provides the following explanation:

Tyler, Tom R., Does the American Public Accept the Rule of Law? The Findings of Psychological Research on Deference to Authority, 56 DePaul L. Rev. 661, 694 (2007)Google Scholar.

²⁰¹ For discussion of the concept of legitimacy audiences, see Shamir-Borer, supra note 94; Euan MacDonald & Eran Shamir-Borer, Remarks at the NYU Hauser Colloquium: Meeting the Challenges of Global Governance: Administrative and Constitutional Approaches (Oct. 1, 2008), at http://iilj.org/courses/documents/MacDonald.Shamir-Borer.92508.pdf. These audiences may include regime members; influential constituencies that can support the regime and its decisions; domestic and global authorities including courts and regulatory bodies whose cooperation is needed for their effective implementation of decisions; other affected interests; the media; and the public generally.

²⁰² See Stewart & Ratton-Sanchez, supra note 199, at 579–80.

²⁰³ Stewart, supra note 46, at 1676.

²⁰⁴ See Boxing Australia, supra note 26; see also Watt v. Australian Cycling Fed’n, CAS 96/153 (July 22, 1996) (Court of Arbitration for Sport reinstituting appellant as cyclist to represent Australia in 1996 Olympic Games).

²⁰⁵ The relation between reason giving and other rule-of-law practices and substantial justice is, of course, a difficult and contested issue in legal theory and in constitutional and administrative law. I address these questions in a separate forthcoming article on global administrative law and the rule of law.

²⁰⁶ Bradlow, Daniel, Private Complainants and International Organizations, 36 Geo. J. Int’l L. 403, 468–76 (2005)Google Scholar.

²⁰⁷ Examples include the W TO Dispute Settlement Body, the International Tribunal for the Law of the Sea, the Aarhus Compliance Committee, the World Bank Inspection Panel, the Court of Arbitration for Sport, the World Bank Sanctions Board, and the UN Appeals Tribunal. In addition, the traditional international administrative tribunals of international organizations address internal personnel matters.

²⁰⁸ Domestic courts, however, face institutional and other limitations that impair their ability to review the decision making by global regulatory bodies that generate the norms being implemented by domestic administrative agencies. See Stewart, supra note 62, at 722 (noting that in the common situation where the decisions of global regulatory regimes are adopted by domestic administrative decisions, domestic courts are unlikely to review directly the procedures and decisions of global regulatory bodies).

²⁰⁹ Mashaw’s history of American administrative law during the nineteenth century shows how administrative officials developed procedures and remedies that afforded citizens with regularized and responsive rules and decisions in an environment where judicial review was, at best, episodic and in many cases not available at all as a practical matter. Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012). He has also shown the importance of the internal administrative law in the contemporary welfare state, which also operates with substantial autonomy from reviewing courts. Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (1983).

²¹⁰ Bignami, supra note 118, at 866 (“When all was said and done, administrative law boiled down to two components: administrative organization and judicial review.”); see Jaffe, supra note 137, at 320 (“The availability of judicial review is the necessary condition, psychologically if not logically, ora system of administrative power which purports to be legitimate, or legally valid.”).

²¹¹ Stewart, supra note 46.

²¹² See Kingsbury, supra note 49.

²¹³ See Deshman, Abigail C., Horizontal Review Between International Organizations: Why, How, and Who Cares About Corporate Regulatory Capture, 22 Eur. J. Int’l L. 1089 (2011)CrossRefGoogle Scholar (case study of review by the Parliamentary Assembly of the Council of Europe of World Health Organization’s handling of 2009 H1N1 pandemic); Stewart & Ratton-Sanchez, supra note 199, at 23 (discussing horizontal review by one global regulatory body’s norms by another).

²¹⁴ 214 New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311 (1932) (Brandeis, J., dissenting).