Jennifer Nedelsky

Bio: Jennifer Nedelsky is an academic researcher from University of Toronto. The author has contributed to research in topics: Property (philosophy) & Constitutionalism. The author has an hindex of 11, co-authored 25 publications receiving 931 citations.

Law's Relations: A Relational Theory of Self, Autonomy, and Law

Abstract: Autonomy is one of the core concepts of legal and political thought, yet also one of the least understood. The prevailing theory of liberal individualism characterizes autonomy as independence, yet from a social perspective, this conception is glaringly inadequate. In this brilliantly innovative work, Jennifer Nedelsky claims that we must rethink our notion of autonomy, rejecting the usual vocabulary of control, boundaries, and individual rights. If we understand that we are fundamentally in relation to others, she argues, we will recognize that we become autonomous with others-with parents, teachers, employers, and the state. We should not therefore regard autonomy as merely a conceptual tool for assigning rights, but as a capacity that can be fostered or undermined throughout one's life through the relationships and the societal structures we inhabit. The political project thus should not only be to protect the individual from the state and keep the state out, but to use law to construct relations with the state that enhance autonomy. Law's Relations includes many concrete legal applications of her theory of relational autonomy, offering new insights into the debates over due process, judicial review, violence against women, and private versus public law

Law, Boundaries, and the Bounded Self

Abstract: IN THE AMERICAN TRADITION of constitutionalism, property has served as a powerful symbol of rights as limits to government. This notion of "rights" functioning as "limits" to "government" involves a complex set of abstractions and metaphoric links that nevertheless is taken as common sense by most Americans. Perhaps the clearest form of that common sense is "Government can't take what's mine" or the more elegant "A man's home is his castle." These phrases convey an image of property as a source of security whose sacredness acts as a barrier even to the power of the state. The enduring power of this image reflects (among other things) the original importance of property in shaping the American conception of rights as limits to the legitimate scope of the state. This conception is, in turn, a part of a deeper phenomenon: the focus on boundaries as the means of comprehending and securing the basic values of freedom or autonomy. The importance of property in American constitutionalism both reflects and exacerbates the problems of boundary as a central metaphor in the legal rhetoric of freedom. I have argued in Private Property and the Limits of American Constitutionalism that in the early development of the American Constitution property served as the defining instance of the notion of rights as limits, and that this notion is an attempt to address the inevitable tension between the individual and the collective.' I concluded that the attempt is deeply flawed and that the problems go beyond the particular limitations of the focus on property. In the end, the new vision of constitutionalism we need requires something more than the replacement of property with other rights that can serve as boundaries. We need a new conception of the tension between the collective and the individual, for which boundary is not an apt metaphor. My purpose here is to explore that rejection of boundary. Drawing on this earlier work, I start by discussing the American Constitution as an instance of the ways boundary has been central to our conceptual and institutional framework and give an account of how the Constitution came to have the boundarylike structure that it does and of what role property played in the emergence of that structure. I offer a critical appraisal of the lasting consequences of the original focus on property that is within the conventions of constitutional discourse. My argument leads, however, to the claim that the particular limita-

Reconceiving Rights as Relationship

Abstract: The author proposes a new understanding of rights as relationship and constitutionalism as a dialogue of democratic accountability. She takes the position that all rights and the concept of rights should be viewed in terms of relationship and that this view provides a better way of resolving rights problems. It is suggested that the focus of decisions regarding rights should be on the kind of relationship we want to foster and the different concepts and institutions that will contribute to that end. In the proposed model, protected rights would be derived from inquiries into what is necessary to create the relationships needed for a free and democratic society. Using this framework, the author argues against constitutionalizing property and concludes by discussing the Alternative Social Charter as an outline of a model of constitutionalism for democratic accountability.

Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy

Abstract: The United States Constitution was designed to secure the rights of individuals and minorities from the tyranny of the majority--or was it? Jennifer Nedelsky's provocative study places this claim in an utterly new light, tracing its origins to the Framers' preoccupation with the protection of private property. She argues that this formative focus on property has shaped our institutions, our political system, and our very understanding of limited government.

Reconceiving Rights as Relationship

Abstract: The author proposes a new understanding of rights as relationship and constitutionalism as a dialogue of democratic accountability. She takes the position that all rights and the concept of rights should be viewed in terms of relationship and that this view provides a better way of resolving rights problems. It is suggested that the focus of decisions regarding rights should be on the kind of relationship we want to foster and the different concepts and institutions that will contribute to that end. In the proposed model, protected rights would be derived from inquiries into what is necessary to create the relationships needed for a free and democratic society. Using this framework, the author argues against constitutionalizing property and concludes by discussing the Alternative Social Charter as an outline of a model of constitutionalism for democratic accountability.

On the european union

Abstract: The extent to which member states transpose EU directives in a timely fashion is often argued to be strongly associated with the general effectiveness of national bureaucracies. But what kind of institutional solutions ensure better performance? This paper examines the patterns and effects of departmental oversight across 28 ministries in Estonia, Hungary, Poland and Slovenia. In mapping the strength of oversight, it relies on around 90 structured interviews regarding the rules-in-use on transposition planning, legal review and monitoring of deadlines. The analysis of the impact of departmental oversight is based on an original dataset of over 300 directives with transposition deadlines between January 2005 and December 2008.

Law, Property, and the Geography of Violence: The Frontier, the Survey, and the Grid

Abstract: Physical violence, whether realized or implied, is important to the legitimation, foundation, and operation of a Western property regime. Certain spatializations—notably those of the frontier, the survey, and the grid—play a practical and ideological role at all these moments. Both property and space, I argue, are reproduced through various enactments. While those enactments can be symbolic, they must also be acknowledged as practical, material, and corporeal.

International Law from Below: Development, Social Movements and Third World Resistance

Abstract: Abbreviations Preface and acknowledgements Introduction Part I. International Law, Development and Third World Resistance: 1. Writing Third World resistance into international law 2. International law and the development encounter Part II. International Law, Third World Resistance and the Institutionalization of Development: the Invention of the Apparatus: 3. Laying the groundwork: the Mandate system 4. Radicalizing institutions and/or institutionalizing radicalism? UNCTAD and the NIEO debate 5. From resistance to renewal: Bretton Woods institutions and the emergence of the 'new' development agenda 6. Completing a full circle: democracy and the discontent of development Part III. Decolonizing Resistance: Human Rights and the Challenge of Social Movements: 7. Human rights and the Third World: constituting the discourse of resistance 8. Recoding resistance: social movements and the challenge to international law 9. Markets, gender and identity: a case study of the Working Women's Forum as a social movement Part IV. Epilogue References Index.

Hypernudge: Big Data as a mode of regulation by design

Abstract: This paper draws on regulatory governance scholarship to argue that the analytic phenomenon currently known as ‘Big Data’ can be understood as a mode of ‘design-based’ regulation. Although Big Data decision-making technologies can take the form of automated decision-making systems, this paper focuses on algorithmic decision-guidance techniques. By highlighting correlations between data items that would not otherwise be observable, these techniques are being used to shape the informational choice context in which individual decision-making occurs, with the aim of channelling attention and decision-making in directions preferred by the ‘choice architect’. By relying upon the use of ‘nudge’ – a particular form of choice architecture that alters people’s behaviour in a predictable way without forbidding any options or significantly changing their economic incentives, these techniques constitute a ‘soft’ form of design-based control. But, unlike the static Nudges popularised by Thaler and Sunstein [(20...