This chapter attempts two tasks, conceptual and normative. First, I argue that constitutions need not include rights as a matter of logic: it is possible for a set of laws and conventions to qualify as a genuine constitution of a state or legal system, even if they do not contain any rights – or almost none. Nonetheless, secondly, I argue that rights-free constitutions miss out on something valuable: it is hard to see non-rights constitutions as intended to serve citizens qua individuals. In particular, I argue that there are strong reasons in favour of constitutional rights on both natural rights and democratic grounds. I end by explaining the way in which rights function as limits on government power: we will see that they need not be the limits that constitutionalists endorse.

Constitutions are fundamental sources of authority in the states that adopt them. Yet, many constitutions offer little guidance about who is eligible for citizenship and what it means to have citizenship. This vagueness often gives rise to fierce contestation about the boundaries of membership in some constitutional states. In the essay that follows, we do not attempt to resolve this contestation. Instead, we distinguish citizenship from other forms of membership, offer an overview of the concept of citizenship, and specify citizenship’s relationship to constitutional theory. We discuss the theories that undergird citizenship practices, the norms that guide its administration, and the ways in which boundaries are established in order to delimit citizenship. We also highlight common boundary problems generated by democratic citizenship even when it is explicitly defined by established constitutional jurisprudence and describe how these boundary problems create complicated challenges that citizens, non-citizens, and states must navigate.

This paper argues for the normative priority of justice as compared to other values. A conception of justice must provide reasons concerning the kind of, for example, liberty or equality that members of a normative order can justifiably claim and demand of each other. Based on a distinction between two ways of thinking about justice, relational-structural accounts of justice versus outcome- and recipient-oriented approaches (such as luck egalitarianism), a conception of justice as justification is developed and located in the first paradigm. That conception considers the question of the power individuals and groups have to co-determine the basic structure of their society as the first question of justice. Developing the substantive and procedural aspects of this view, a particular view of the role and nature of a constitution is suggested. Its task is to establish a basic structure of justification that secures the status of non-dominated legal, political and social equals who ought to be the authorities within that order. In various ways, from enshrining basic rights to democratic procedures and social protections, a constitution raises thresholds of justification in contexts where subjection to forms of unjustified, arbitrary rule is a threat.

The increased interest in deliberative minipublics has generated a debate about their proper role within processes of political decision-making and of constitutional review and amendment. A key question in this debate is whether it is democratically legitimate to confer decision-making authority upon minipublics. To help answer this question, I distinguish between proposals that seek to empower minipublics to do the deliberating and deciding for the rest of the citizenry, and proposals that seek to institutionalize minipublics with the aim of empowering the entire citizenry to influence policy making, set the political agenda, and have the final say on certain political decisions. In contrast to empowered uses of minipublics that would bypass the citizenry’s political deliberation, I argue in favor of using minipublics for contestatory, vigilant, and anticipatory purposes. These uses would improve the quality of deliberation in the public sphere while strengthening citizens’ democratic control over political decisions. Regarding proposals for embedding minipublics within processes of constitutional review and amendment, I argue that they need to identify institutional ways of securing a strong feedback loop between deliberation within constitutional minipublics and deliberation in the wider public sphere throughout the process.

There have been more than 400 years of research surrounding the state, but its concept remains iridescent and varies between different legal cultures. This contribution asks why and how the concept of the state evolved in continental Europe and examines why the term did not enter the legal terminology of England and later the US. It introduces four influential concepts of the state from the constitutional theory of the 19th and 20th century and shows how these concepts have set the paths on which debate around the state still moves today. Finally, the chapter revisits the most famous critiques of the concept, to then answer the central question surrounding the “state” in constitutional theory: what use does the concept retain today.

Impartiality as a property of government is central to many of the major constitutional concerns of liberal democracy. This essay tersely considers the nature and implications of impartiality in three main areas: the rule of law; the distinction between the right and the good; and freedom of speech. Because of constraints of space, each of the discussions in this paper is no more than a sketch of the complex matters that are at issue in debates over impartiality.

This chapter deals with a market arrangement at a moment of uncertainty and concern around its continued existence. This arrangement is what I call the impersonal price, or a system of impersonal retail prices, elsewhere also referred to as a system of fixed prices. These phrases describe markets where prices are visible, homogeneous across customers, and non-negotiable. As the chapter shows, impersonal retail prices did not just happen. They are the product of complex interactions between legal regulation, material-technical arrangements, and economic theories, as mobilized in different historical contexts to different socio-political and economic ends.

Over the years, businesses have been trying to identify ways to segment their customer base and engage in price discrimination. The objective is to provide different prices to different consumers based on a range of factors, such as age, location, income, and other demographic characteristics, which are considered capable of revealing the reserve price of buyers. With the increasing use of digital technology, this practice has become even more accurate and sophisticated, leading to the emergence of personalized pricing. This pricing approach utilizes advanced algorithms and data analytics to approximate the exact willingness to pay of each purchaser with greater precision.

The United States is the Wild West of algorithmic personalized pricing. It is practiced (and researched) extensively, possibly more than anywhere else in the world, and at the same time, it is less regulated than in many of the jurisdictions surveyed in this Handbook, most notably the European Union (EU) and China. This is not necessarily puzzling. American corporations have been the driving force behind many of the technological innovations associated with the rise and development of algorithmic personalized pricing. However, there is a long tradition in the US of opposition to regulating markets, and algorithmic personalized pricing exemplifies this approach.

Many of our pressing questions about price personalization concern its current practice and potential regulations. We could be tempted to move directly to those hard questions because many – but not all – consumers, scholars, and regulators already believe with some confidence that price personalization harms consumers or treats them unfairly. In this chapter, I pause to unpack intuitions about harm and unfairness and consider systematically what the normative problems with price personalization might be so that our understanding can inform what we look for in existing practice and what we aim to achieve with new regulations.

In an unprecedented ruling, in 2018, the Brazilian Consumer Protection Authority applied a fine to a popular online travel company named Decolar.com for allegedly favouring foreign consumers over Brazilian residents during the 2016 Olympics held in Rio de Janeiro. The accusation was that Decolar.com had offered hotel reservations at different prices according to the consumer’s location as identified through their internet protocol address, or IP address.

To our knowledge, this is the only case thus far in Brazil that reviewed the practice of charging different prices from different consumers based on their specific characteristics.

The digital age, characterized by the rapid development and ubiquitous nature of data analytics and machine learning algorithms, has ushered in new opportunities and challenges for businesses. As the digital evolution continues to reshape commerce, it has empowered firms with unparalleled access to in-depth consumer data, thereby enhancing the implementation of a variety of personalization strategies. These strategies utilize sophisticated machine learning algorithms capable of attaining personal preferences, which can better tailor products and services to individual consumers. Among these personalization strategies, the practice of personalized pricing, which hinges on leveraging customer-specific data, is coming to the forefront.

Personalized pricing is a form of pricing where different customers are charged different prices for the same product depending on their ability to pay, based on the information that the trader holds of a potential customer. Pricing plays a relevant role in the decision-making process by the consumers, and a firm’s performance can be determined by the ability of the business entities to execute a pricing strategy accordingly. Further, pricing also determines the quality, value, and willingness to buy. Usually the willingness of a consumer depends on transparency and fairness.

Technological developments have enabled online sellers to personalize prices of the goods and services.

As the personalization of e-commerce transactions continues to intensify, the law and policy implications of algorithmic personalized pricing (APP) should be top of mind for regulators. Price is often the single most important term of consumer transactions. APP is a form of online discriminatory pricing practice whereby suppliers set prices based on consumers’ personal information with the objective of getting as close as possible to their maximum willingness to pay. As such, APP raises issues of competition, privacy, personal data protection, contract, consumer protection, and anti-discrimination law.

This book chapter looks at the legality of APP from a Canadian perspective in competition, commercial consumer law, and personal data protection law.

In the era of digital economy, business operators often collect and utilize information such as consumers’ browsing history and past purchases to build user profiles and capture consumer needs. Based on such data, business operators would be able to provide personalized search results for their consumers. Arguably, this mode of operation is a boon to consumers and operators alike. It provides convenience and increases efficiency for the consumers, and their increased likelihood to purchase in turn generates profits and commercial returns for the business operators. In fact, the potential for personalized services is arguably one of the reasons driving the success of e-commerce.