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Abstract
This article bridges comparative constitutional law with research inspired by city leadership and the opportunities that technology brings to the urban environment. It looks first to some of the causes of rapid urbanization and finds them in the pitfalls of antidiscrimination law in federations and quasi-federations such as the United States and the European Union. Short of achieving antidiscrimination based on nationality, the EU has experimented with data privacy as an identity clause that could bring social cohesion the same way purportedly freedom of speech has done in the US. In the City however, diversity replaces antidiscrimination, making cities attractive to migrants across various walks of life. The consequence for federalism is the obvious decline of top-down or vertical, state-based federalism and the rise of legal urbanism whereby cities establish loose networks of cooperation between themselves. These types of arrangements are not yet a threat to the State or the EU but might become such if cities are increasingly isolated from the political process (e.g., at the EU level) and lack legal means to assert themselves in court. City diversity and openness to different cultures in turn invites a connection to new technologies since unlike antidiscrimination that is usually strictly examined on a case-by-case level, diversity can be more readily computed. Finally, the article focuses on NYC and London initiatives to suggest a futuristic vision of city networks that instead of using social credit score like in China, deploy data trusts to populate their urban environments, shape city identities and exchange ideas for urban development..

Research shows that in the data privacy domain, the regulation promoted by front-runner states in federated systems such as the United States or the European Union (EU) generates races to the top, not to the bottom. Institutional dynamics or the willingness of major interstate companies to work with a single standard generally creates opportunities for the federal lawmaker to level up privacy protection. This article uses federalism to explore whether a similar pattern of convergence (toward the higher regulatory standard) emerges when it comes to the international arena, or whether we witness a more nuanced picture. I focus on the interaction of the European Union with the United States, looking at the migration of legal ideas across the (member) state jurisdictions with a focus on breach notification statutes and privacy officers. The article further analyzes recent developments such as the invalidation of the Safe Harbor agreement and the adoption of a Privacy Shield. I argue that instead of a one-way street, usually conceptualized as the EU ratcheting up standards in the United States, the influences between the two blocs are mutual. Such influences are conditioned by the receptivity and ability of domestic actors in both the United States and the EU to translate, and often, adapt the "foreign" to their respective contexts. Instead of converging toward a uniform standard, the different points of entry in the two federated systems contribute to the continuous development of two models of regulating commercial privacy that, thus far, remain distinct.

This article compares American constitutional law and practice on the First Amendment freedom of speech vis-à-vis data privacy in the US to the right to freedom of expression vis-à-vis data privacy rights under European law. The purpose of the comparison is to sketch the current state of an internal hierarchy of values for each of the two (EU and US) legal orders. Whereas in the US commercial interests seem to have taken precedence in the balance between freedom of speech and data privacy, the EU is at a crossroads. As will be laid out in this article the Court of Justice of the European Union (CJEU) has started to show preference for data privacy rights over commercial interests through the cases Google Spain, Digital Rights Ireland and Schrems. The idea that both freedom of expression and data privacy have a political and an autonomy aspect is developed. The main task of the CJEU in the balancing exercise is not to prioritize one right over the other. The CJEU can rather justify when one aspect of a right might under the circumstances of a particular case be deemed more important than the aspect of another right. Following this notion further, when the right to access to documents is at stake, the autonomy aspect of data privacy rights needs to give way to political values such as accountability and self-government protected by the right to access to documents. I suggest a calibrated proportionality test for the CJEU modelled on the US tiers of scrutiny.

AbstractBuilding on the theory of democratic constitutionalism, I assess the political implications of the constitutional space formed by the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and national constitutional courts in Europe. Democratic constitutionalism helps situate the role of constitutional courts in stimulating a degree of consensus, necessary for governance of heterogeneous communities such as the United States and the European Union. Questions of legitimacy and confidence in the judiciary come to the fore. I examine a mechanism used by the US Supreme Court, the CJEU and the ECtHR alike to foster democratic constitutionalism: in order to confront challenges to judicial legitimacy and remain responsive to the extra-judicial environment, these courts rely on majoritarian trends, or consensus, inspired by, but not limited to, the constitutional law of federal states and member countries.