venerdì 30 settembre 2011

Second REALaw Research Forum:Pluralism in European Administrative Law

The Review of European Administrative Law (REALaw), in cooperation with University of Groningen and the Utrecht University, is organising a one-day colloquium in order to give researchers working in the area of European administrative law the opportunity to present their work (in progress) and to encourage exchange between scholars in this field. The Second REALaw Research Forum will be held in Groningen on February 3rd 2012.
Call for papers
The mutual relation and influence of European Union law and national law has been studied from the top-down and bottom-up perspective (e.g. REALaw 2009/2). Yet, it is submitted that there is another dimension emerging in this mutual relationship. This dimension reflects a more ‘horizontal’ approach in the sense that the main focus is the relationship between national actors who exchange information, opinions and ideas about how European law rules, institutions, principles and concepts should or could be interpreted and further developed. This process is enhanced by the operation of formal and informal networks of, for instance, national judges who may shape European law through a mutual dialogue, without necessarily turning to the ECJ for guidance.
While European Union legislation aims in the first place at the harmonization of various specific areas of law, such as social and economic law or environmental law, the general rules and principles of administrative law are often no more than instrumental in achieving the aims of sector specific or functional harmonisation and an aid to the implementation of substantive EU law. The impact of European Union law on the general part of national administrative law is not primarily prompted by the desire to harmonise, unify, or coordinate these general parts. It is at all times related to the question to what extent this is necessary to achieve a certain degree of harmonisation of substantive law and to guarantee legal protection. For these reasons the rules and also ECJ case law that touch upon the general features of administrative law are often open ended, leaving quite some scope for further substantiation by national actors, a sort of ‘harmonisation light’.
This phenomenon of ‘pluralism in European administrative law’ is the main focus of the Second REALaw Research Forum. Papers that deal with processes of development of the law in a pluralistic context in the particular area of the ‘semi-harmonised’ general rules and principles of administrative law are welcome.
Participants wishing to present a paper should submit a CV and a 250-word abstract outlining the presentation to the managing-editor of REALaw: Dr. K.J. de Graaf ( Abstracts are to be submitted before December 1st 2011. Selection will be made by the editorial board of REALaw as soon as possible thereafter. Full papers will be considered for publication in REALaw.
Date: February 3rd 2012
Venue: University of Groningen, The Netherlands (
Registration fee: €100 (conference, lunch, drinks and conference materials).

giovedì 29 settembre 2011

Journée d’étude sur l’Union européenne et les droits fondamentaux

Dans le cadre de leur programme commun et sous l’égide du Pôle international et européen de l’Université Paris II, le CRDH et le Centre de droit européen de Paris II proposent une journée d’étude consacrée aux nouveaux défis liés aux droits fondamentaux dans l’Union européenne, occasion notamment d’un bilan décennal de l’application de la Charte des droits fondamentaux de l’Union – Charte à laquelle le CRDH avait consacré dès 2000 une première journée d’étude, publiée dans la revue Europe.

Download the full program here:


Full text available at:

You can find the other book reviews at the following URL:

Associazione Italiana dei Costituzionalisti

 from the latest newsletter:

Il custode della democrazia parlamentare. Nota a prima lettura alla sentenza del Tribunale costituzionale federale tedesco del 7 settembre 2011 sui meccanismi europei di stabilità finanziaria
di Raffaele Bifulco

Pareggio di bilancio: qualcosa si può fare
di Alessandro Pace

ll Consiglio d'Europa alla ricerca di una definizione di "rule of law". Sul rapporto della Commissione di Venezia "on the rule of law" del 4 aprile 2011
di Gianluca Serra

mercoledì 28 settembre 2011

Center for Transnational Legal Studies (CTLS) "Transnational Law Colloquium"

Transnational Law Colloquium

Thursdays, 3:10-5pm
3rd Floor, Swan House, 37-39 High Holborn (nearest tube Chancery Lane), London

o   Week 1: Sept. 1, 2011
Andrew Lang (London School of Economics, Law Department): World Trade Law After Neoliberalism: Reimagining the Global Economic Order
o   Week 2: Sept. 8, 2011
Michael Fischl (University of Connecticut): A Common Law for Labor Relations: Redux
o   Week 3: Sept. 15, 2011
Teemu Ruskola (Emory Law School and Georgetown Law): Where Is Asia? When Is Asia? Theorizing Comparative Law and International Law
o   Week 4: Sept. 22, 2011
Daphna Lewinsohn-Zamir (Hebrew University Jerusalem): The Thing Itself: The Preference for In-Kind Over Monetary Redress
o   Week 5: Sept. 29, 2011

Pascal Pichonnaz (University of Fribourg): Codification of European Private Law: Has Europe forgotten the Old Principle that Rules cannot precede the Law?
o   Week 6: Oct. 6, 2011
Alexander Türk (King’s College London): Lawmaking After Lisbon
o   Week 7: Oct. 13, 2011
Carrie Menkel-Meadow (University of California-Irvine and Georgetown Law): Restorative Justice: What Is it and Does It Work?
o   Week 8: Oct. 25, 2011
Franz Werro (University of Fribourg and Georgetown Law): The Right to be Forgotten v. The Right to Inform: A Transatlantic Clash
o   Week 9: Nov. 3, 2011

Tshepo Madlingozi (University of Pretoria): On Transitional Justice Entrepreneurs and the Production of Victims
o   Week 10: Nov. 10, 2011
Helmut Grothe (Free University of Berlin): International Jurisdiction for Actions against International Sport Associations challenging Doping Bans
o   Week 11: Nov. 17, 2011

Prabha Kotiswaran (School of Oriental and African Studies): Anti-Trafficking Law: A Legal Realist Critique
o   Week 12: Nov. 24, 2011

Helena Alviar (University of Los Andes, Colombia): Social Policy and the New Developmental State: the Case of Colombia
o   Week 13: Dec. 1, 2011
Virginia Mantouvalou (University College London): Are Labour Rights Human Rights?
Please find a map locating CTLS here:

Scuola Superiore S.Anna "Ph.D. Programme in POLITICS, HUMAN RIGHTS AND SUSTAINABILITY"

Ph.D. Programme in
Academic Year 2011-2012

4 positions with fellowships for EU citizens

3 positions with fellowships for NON - EU citizens

Research Areas (Curricula)
- Identity, rights and conflicts in political theory
- Conflict and political systems in international relations
- International and European political economy
- Institutions and mechanisms for protecting human rights: outlines of International Law
- Rights and social capital in the regional development policies
- Agrarian Law, Environmental Law and Sustainable Development of the Land

- Candidates UE citizens are requested to apply online by October 25, 2011
- Candidates NON - UE citizens are requested to apply online by October 10, 2011


martedì 27 settembre 2011

Nollkaemper et al. on "Importing International Law in Post-Conflict States: The Role of Domestic Courts"

Importing International Law in Post-Conflict States: The Role of Domestic Courts

Andre Nollkaemper

University of Amsterdam - Amsterdam Center for International Law

Cedric Ryngaert

Ludwig Maximilians University, Munich - Institute of International Law, Comparative Law

Edda Kristjansdottir

affiliation not provided to SSRN

September 26, 2011

Amsterdam Center for International Law No. 2011-12

States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. This paper contains the introduction and the conclusion of a volume that empirically examines several recent attempts which states have made to buttress the rule of law by importing international law into the gaps created in domestic law in a transition period. More in particular, the volume considers the practice of empowering national courts to give effect to international law in order to protect the rule of law.

The use of the word ‘importing’ in the title of the book does not imply that the use of international norms in national legal orders is a one-way process by which the ‘receiving’ states choose (or are forced) to import an international rules. Often the contrary appears to be the case, and much of the literature on rule of law promotion by states and international institutions takes an ‘exporting’ rather than ‘importing’ approach. While we recognize and indeed will pay ample attention, in the chapters that follow, to the activities of international institutions that seek to strengthen the rule of law in particular post-conflict situations, in the final analysis the effect of such strategies, both in legal and practical terms, depends on the ‘receiving’ state – hence the chosen perspective of the importing state.

The case-studies in the book cover such diverse situations as Iraq, Afghanistan, the Balkans, Nepal, and Rwanda. The conclusions may directly be relevant to future situations in both post conflict and post-authoritarian situations. 
Full text available at:

lunedì 26 settembre 2011

Bifulco "Il pareggio di bilancio in Germania: una riforma costituzionale postnazionale?"

from the abstract:

"La riforma costituzionale tedesca che ha introdotto un freno al debito pubblico (c.d. Schuldenbremse) rappresenta un imprescindibile punto di riferimento per qualsiasi iniziativa normativa di analogo tenore . L'exemplum tedesco assume un particolare valore in ragione di alcuni fattori: in primo luogo, per il primario ruolo politico che la Repubblica federale di Germania svolge all'interno dell'Unione europea; in secondo luogo, per la peculiare attenzione che il legislatore costituzionale tedesco ha sempre mostrato nei confronti della c.d. costituzione finanziaria, che disciplina con inusuale precisione i rapporti finanziari tra Federazione (Bund) e Stati membri (Länder); in terzo luogo, per l'apparente cambio di marcia che questa riforma implica, ove solo si pensi che le precedenti regole costituzionali in materia di bilancio, in particolare la c.d. golden rule introdotta con la riforma costituzionale del 1969, hanno consentito alla Germania di sviluppare intensamente il carattere di socialità della propria forma di stato; infine e con riferimento ad aspetti più congiunturali, per le legittime domande sul rapporto di causa-effetto tra la riforma costituzionale e il contesto economico internazionale".

full text available at:

domenica 25 settembre 2011

Guest Blogger: Delledonne on "Alla ricerca del fondamento: a proposito dell’ultimo libro di Martin Loughlin"

In un suo recente scritto Sabino Cassese, riflettendo sulla situazione attuale del diritto amministrativo e della sua scienza in Italia, rilevava che il diritto amministrativo vive oggi un significativo arricchimento delle tematiche studiate, cui si accompagna però una forte difficoltà metodologica; che l’appannamento del legame con la tradizione romanistica è sempre più causa di insicurezze e imprecisioni nell’impiego di concetti e termini fondamentali della disciplina; e, infine, che tra i due principali rami del diritto pubblico interno, il costituzionale e l’amministrativo, si è prodotta una divaricazione che appare difficilmente ricomponibile nel breve periodo (Lo stato presente del diritto amministrativo italiano, in “Rivista trimestrale di diritto pubblico”, 2010).
L’ultimo libro di Martin Loughlin, Foundations of Public Law (Oxford, OUP, 2010), sembra fare

mercoledì 21 settembre 2011

Alemanno on Precautionary Principle

This post provides a 'state of the art' on the role played by the Precautionary Principle

Rosenfeld on law and philosophy

Philosophy in Law? A Legal Philosophical Inquiry

Michel Rosenfeld

Cardozo Law School

September 15, 2011

Going beyond the debate between positivists and proponents of natural law, there is a controversy over whether there can or ought to be “philosophy in law” ( i.e., whether anything within the subject-matter of philosophy can also become part of the subject-matter of law). According to Luhmann’s autopoietic theory, law is a normatively closed system and accordingly remains completely independent from philosophy. Dworkin, on the other hand, asserts that constitutional law depends for its coherence and integrity on being encompassed within a particular political philosophy. This essay approaches “philosophy in law’ from a functional rather than a legitimating perspective, and concludes against both Luhmann and Dworkin that the integration of philosophy in law is interstitial and limited. The consequence of this for law’s validity and legitimacy is a likely increase in contestant and contestability. The essay concludes that by embracing pluralism as a philosophy, one can reduce and better manage contestability without ever becoming able to eliminate it. 

Perez on legal pluralism

Legal Pluralism

Oren Perez

Bar-Ilan University - Faculty of Law


A concise overview of the concept of 'legal pluralism' and its elaboration in the legal literature for The Oxford Encyclopedia of American Political and Legal History (2012), Eds. Donald T. Critchlow and Philip R. VanderMeer. 
Full text available at: 

Eleftheriadis on citizenship and obligation

Citizenship and Obligation

Pavlos Eleftheriadis

University of Oxford - Faculty of Law

THE PHILOSOPHICAL FOUNDATIONS OF EUROPEAN UNION LAW, Julie Dickson & Pavlos Eleftheriadis, eds., Oxford University Press, Forthcoming
Oxford Legal Studies Research Paper No. 45/2011

Many political philosophers believe that we owe moral obligations to our political communities simply because we are asked. We are, for example to pay taxes, or serve in the army whenever we are demanded to do so by the competent authorities or agencies. Can such moral obligations be created by European Union institutions? This essay discusses the natural duty of justice to support just or nearly just political institutions as defended by John Rawls and Jeremy Waldron. It suggests that European Union institutions can be seen to create similar obligations, only if we adopt a cosmopolitan theory of political legitimacy for both domestic and international institutions. A key distinction proposed is that between a duty of jurisdiction, owed by everyone to every legitimate state, and a duty of civility, owed by citizens to their own states. 

Full text available at:

Vermeule on precautionary principles in constitutional law

Precautionary Principles in Constitutional Law

Adrian Vermeule

Harvard Law School

September 19, 2011

This article examines precautionary strategies of constitutional design and interpretation. In many contexts, constitutional actors and theorists justify rules of constitutional law as precautionary measures against various political risks, including the abuse of power by incumbent officials, dictatorship, majoritarian oppression, and biased adjudication. After providing an analytic taxonomy of such arguments, I examine criticisms of constitutional precautions offered by early proponents of national power such as Hamilton, Marshall and Story, and by New Dealers such as Frankfurter and Jackson. These critics argued that precautionary constitutionalism might be futile, might jeopardize other values, and might even prove perversely self-defeating, if and because the precautions create or exacerbate the very risks they were intended to prevent. Accordingly, these critics argued for a “mature position” that requires constitutional rulemakers to consider all relevant risks of action and of inaction. I identify a strictly negative but nonetheless valuable function of that approach: by laundering out one-sided arguments and placing all relevant risks before constitutional rulemakers, the mature position improves the process of constitutional design and interpretation. 

Varju on the new Hungarian Basic Law

Hungary: The New Basic Law

Marton Varju

University of Hull - School of Law

European Public Law Journal, Fortcoming

The birth of a new constitution is an exceptional event in contemporary Europe and an outstanding opportunity for public lawyers to make the best use of the richness of models, experiences and requirements European constitutionalism offers. The pleasant difficulties the drafters face come from the profusion of transplantable solutions available in other European jurisdictions and from the external constraints placed on national constitutions by European constitutional law, most notably the law of the European Convention on Human Rights. Selecting the right constitutional ingredients from other jurisdictions and establishing an appropriate response to European obligations requires care and expertise. The European elements only add to the already complex task of producing a constitutional document suitable for a state in 21st century Europe.

A new constitution would need to acknowledge and express the developments in how the state interacts with its environment. The shift from hierarchical modes of government to more complex structures and activities of governance, the transformation from a provider and owner state to a regulatory state and the gradual decrement in the European Union of the state's autonomy in regulating the market should have an impact on the definition of basic constitutional concepts, such as sovereignty, power, accountability and citizenship. The evolution of new forms of accountability should be expressed in the constitution along the traditional modes of democratic and legal accountability. Open government and the transparency of governance should be elevated to the position of basic constitutional principles. The language of fundamental rights in the constitution should be able to express the relationship between the state and the individual and the state and the market in an open and pluralistic society.

These concerns would suggest a slow preparation for a new constitution. This was hardly the case in Hungary. The few months of actual constitution-making were troubled by a turbulent period in domestic and European politics, mainly in the first half of 2011. Besides engaging in an overhaul of the entire domestic constitutional architecture, the government completed its first ‘European semester’ serving as the Presidency of the Council of the European Union. The six month term started badly with open political hostilities towards the Hungarian government, and the pressure never really ceased – suffice to mention the war in Libya and the euro-zone crisis. The political storms in the EU, nonetheless, did not prevent the government from raising more political and legal controversy by whipping through the Hungarian Parliament the new Basic Law prepared and debated only for a handful of months between the end of 2010 and April 2011, when it was finally adopted.

The process of constitution-making and some of the content of the new constitution attracted severe criticism from politicians, NGOs, intellectuals and experts. In particular, the opinions of the Venice Commission condemned the new Basic Law. The Commission pointed out that the constitution-making process lacked transparency and social dialogue, and received some substantive changes, such as the limitations of the competences of the Hungarian Constitutional Court, the new catalogue of fundamental rights and the regulation of certain substantive issues, in particular the role and powers of the judiciary, with reservations. The government responded by observing that the solutions adopted in the new Basic Law were all inspired by one or another constitution of EU Member States. Whether shopping around among European constitutions was an appropriate method of constitution-making was not considered by the government. 

Dyevre on Melki

The Melki Way: The Melki Case and Everything You Always Wanted to Know About French Judicial Politics (But Were Afraid to Ask)

Arthur Dyevre

Max Planck Institute for Comparative and International Law

September 18, 2011

Both the ECJ Melki ruling and the new French system of priority constitutional referral have received considerable scholarly attention, whether from the perspective of EU law or from that of domestic or comparative constitutional law. This paper looks at the Melki story primarily from the standpoint of domestic judicial politics. The decision of the Cour de cassation to send a reference for a preliminary ruling to the judges in Luxembourg on the conformity of the new interlocutory procedure with EU law cannot be separated from the context in which it occurred. Nor can the strong reactions that it elicited be properly understood without examining the background of the constitutional reform and the role which EU law and the ECHR have come to play in the French legal system. As what was initially a modest reform was successfully reframed by the Council and its allies in the legal academy as a “legal revolution” promising to bring human rights back to its homeland, the new concrete review mechanism posed a growing threat to the Cour de cassation’s influence. The reform, it is argued, threatened to undermine not only its grip on the lower civil courts but also to chip away at the considerable autonomy it had enjoyed in developing ECHR law in the French context. In these circumstances, the Melki reference may be viewed as a last-ditch (and with hindsight poorly judged) attempt to use EU law to derail a reform that was on its way to reconfigure inter-court relations in France at the expense of the Cour de cassation. With the Melki route - killing the priority referral mechanism by dragging the ECJ into the domestic “guerre des juges” - blocked, the Court is now isolated and under pressure to apply the new procedure in a way that is more favorable to the Constitutional Council. 

Democratic Conditionality in Eastern Enlargement: Ambitious Window Dressing

Dimitry Kochenov

University of Groningen - Faculty of Law

Eline De Ridder

Ghent University, Centre for EU Studies

Eurpoean Foreign Affairs Review, Vol. 16, 2011

This article addresses the promotion of democracy in the enlargement process of the Central and Eastern European countries. We start by outlining EU democracy promotion during accession, with a particular focus on political conditionality. In a subsequent part we argue that the European Commission did not make a clear substantive distinction between the concepts of rule of law and democracy. In addition various drawbacks are identified which demonstrate the vagueness and inconsistencies which characterize the EU’s application of democratic conditionality. A final part illustrates these points by focusing on the EU’s democratic conditionality towards the Czech Republic and Slovakia. The conclusion reads that the EU did not have a well-defined view and approach to the promotion of democracy and the rule of law in the Eastern enlargement.

On the Limits of Judicial Intervention: EU Citizenship and Family Reunification Rights

On the Limits of Judicial Intervention: EU Citizenship and Family Reunification Rights

Peter Van Elsuwege

Professor of EU Law, Ghent University

Dimitry Kochenov

University of Groningen - Faculty of Law

European Journal Migration & Law, Vol. 13, 2011

This article scrutinies the logic behind the recent judgments of the Court of Justice of the European Union (CJEU) in Ruiz Zambrano and McCarthy focusing on their implications for the right to family reunification under EU law. Specific attention is devoted to the phenomenon of reverse discrimination in the context of the new jurisdiction test established by the Court, which is based on the severity of the Member States’ interference with EU citizenship rights rather than on a pure cross-border logic. EU citizens unable to establish a link with EU law are often subject to stricter family reunification requirements in comparison to their migrant compatriots and even certain third country nationals. It is argued that this situation is difficult to accept in light of the principles of legal certainty, equality and the protection of fundamental rights. A new balance between EU citizenship and Member States’ regulatory autonomy is established but legislative action is required to solve the outstanding problems. 

Call for paper "Global Journal of Comparative Law"

from the Call for Papers:

The Global Journal of Comparative Law is established to provide a dynamic platform for the dissemination of ideas on comparative law and to report on developments in the field of comparative law from all parts of the world. In our contemporary globalized world, it is almost impossible to isolate developments in the law in one jurisdiction or society from another.
At the same time, what is traditionally called comparative law is increasingly subsumed under aspects of International Law. This new journal therefore aims to maintain the discipline of comparative legal studies as vigorous and dynamic by deepening the space for comparative work in its transnational context.


For enquiries or to submit a manuscript proposal, please contact:
Billy Melo Araujo,
Francis Botchway,
Kim Van der Borght,

lunedì 19 settembre 2011

Bonadio on enhanced Cooperation in Patent Matters

The EU Embraces Enhanced Cooperation in Patent Matters:
Towards a Unitary Patent Protection System

Enrico Bonadio

City University London; The City Law School of City University London

European Journal of Risk Regulation 3/2011

On 13 April 2011 the Commission tabled a package of two legislative proposals implementing enhanced cooperation in the field of unitary patent protection and translation arrangements. Such proposals were subsequently agreed upon by the EU ministers in an Extraordinary Competitiveness Council on 27 June 2011.
The objective of this regulatory move is to offer innovators in Europe a unique patent right which can only be transferred, licensed, revoked or may lapse in all the Member States which participate in the enhanced cooperation.
However, Spain and Italy have chosen to remain outside the enhanced cooperation system and challenged before the Court of Justice of the European Union (CJEU) the Council Decision of 10 March 2011 authorizing such cooperation. They point out inter alia that the envisaged system would advantage applicants coming from EU English, French or German speaking countries. 
Full text available at:

venerdì 16 settembre 2011

European Constitutional Law Review: new issue

Issue 2, Vol. 7, of the European Constitutional Law Review is out, here you can find the table of contents:

Hailbronner and Sanchez on Citizenship of the European Union: New Developments Towards a Truly Fundamental Status

The European Court of Justice and Citizenship of the European Union: New Developments Towards a Truly Fundamental Status

Michaela Hailbronner

Yale Law School

Sara Iglesias Sanchez

University of Cadiz

Vienna Journal on International Constitutional Law, Forthcoming

In two recent, revolutionary decisions, – Janko Rottmann C-135/08 and Ruiz Zambrano C-34/09 – the European Court of Justice has firmly emancipated the status of citizenship of the Union from the “cross-border” requirement and has inaugurated a new area for the protection of rights closely linked to the core of sovereignty of States, nationality and residence. This Article examines these two judgments and argues that they advance the construction of citizenship towards a federal status. The “genuine enjoyment of the substance of citizenship rights” has emerged as a new legal category capable of providing a uniform and general protection and entails the affirmation of a core of rights of supranational nature. This new development raises questions as to whether the ECJ’s expansionist reading of citizenship constitutes a legitimate exercise of judicial power and what the relationship between citizenship and EU fundamental rights will be. We conclude by exploring the potential of the analyzed judgments in placing Union citizenship at the center of the emergence of a constitutional patriotism in Europe. 
Full text available at:

venerdì 9 settembre 2011

Alter on "International Enforcement Courts"

International Enforcement Courts

Karen J. Alter

Northwestern University - Department of Political Science

August 25, 2011

APSA 2011 Annual Meeting Paper

International enforcement courts are explicitly empowered to rule on state compliance with international law. Part I identifies the universe of permanent international courts (ICs) with delegated enforcement roles and it explains why states are increasingly consenting to robust compulsory international judicial review of state compliance. Part II focuses on enforcement courts as they influence state behavior and international politics. Examining four detailed case studies, I explain the mobilization and influence of ICs over time. The cases are intentionally diverse, including WTO review of the United States Foreign Sales Corporation policy, a challenge to a Peruvian decree designed to circumvent Andean prohibitions against second use patents, the ECOWAS court’s finding that Niger failed to protect a former slave, and the indictment and subsequent arrest the President of Liberia for war crimes committed in a neighboring state. I argue that across courts, cases and subject matter, ICs influence political outcomes by providing sources of leverage that domestic and international interlocutors use to tip the political balance in favor of those actors who prefer law compliance, for whatever reason. Overall, the book will have approximately eighteen cases, showing a variety of ways that ICs tip the political balance in international and domestic politics. 

Partlett on Constitutional Politics

Making Constitutions Matter: The Dangers of Constitutional Politics in Current Post-Authoritarian Constitution Making

William Partlett

Stanford Law School

September 9, 2011

This paper will explore a critical normative question at the intersection of constitutional and democratic theory: Is the process of constitutional drafting and ratification important in determining whether a constitution will serve as a constraint on future government activity? Many constitutional theorists maintain that constitution-making process is critical in making a constitution “matter.” They argue that the best constitution-making process is one where the people divorce constitutional drafting and ratification as much as possible from pre-existing, ordinary rules and institutions by encouraging the “people” to directly act through irregular mechanisms such as referendums and constitutional conventions. This irregular expression of popular sovereignty – called “constitutional politics” – ensures that the constitution will transcend ordinary politics and therefore limit future legislative and executive action.

The massive wave of constitution making in post-communist Europe and Asia in the late 1980s and early 1990s – a valuable laboratory for testing constitutional theory – suggests serious problems with this approach. First, the most successful and legitimate post-communist constitutional orders were established without engaging in constitutional politics. Instead, these countries made wide use of ordinary political mechanisms - including parliaments - in the construction of robust constitutional orders. Second, post-communist nations that have sidelined ordinary political institutions and rules in favor of the mechanisms of higher lawmaking in creating constitutional orders have actually been far less successful in building constitutions that constrain government activity.

Post-Soviet constitutional development helps explain why constitutional politics has not helped create legitimate constitutional limitations on political power. Russia is the paradigmatic example. After two years of parliamentary constitution-making, Russian President Yeltsin – locked in a battle with parliament to control the fate of Russia – drew on the language of constitutional politics to sideline existing rules and institutions. After winning a referendum in which more than 50% of the voters declared their support for Yeltsin, he called an appointed constitutional convention, disbanded parliament, and dispersed the Constitution Court. He then ratified his own personally drafted authoritarian constitution.

The Russian example shows how constitutional politics can allow charismatic individuals to reassert dictatorship. In the absence of unwritten conventions or rules, the extralegal, popular mechanisms of constitutional politics can help charismatic leaders claim the mantle of popular legitimacy and assert dictatorship. Constitutional theorists therefore should appreciate the important role that ordinary political institutions and rules – even ones tainted by association with a prior regime – can play in the construction of legitimate constitutions. Otherwise, liberal constitutional theorists risk legitimizing the creation of authoritarian constitutions. 

Halberstam on federalism

Federalism: A Critical Guide

Daniel Halberstam

University of Michigan Law School

September 9, 2011

U of Michigan Public Law Working Paper No. 251

This sweeping paper provides a critical overview of federalism scholarship and practice in comparative and interdisciplinary perspective. It presents and critiques historical debates about defining federalism, maps out a comprehensive normative theory of federalism, suggests the centrality of a refined theory to legal disputes, discusses the significance of new institutional theory, and reconsiders the purported consequences of federal architecture for key issues such as policy stability and polity stability. The paper closes by exploring avenues for expanding the reach of federalism all the way from private to global governance. 

giovedì 8 settembre 2011

Varol on "Democratic Coup d'État"

The Democratic Coup d’État

Ozan O. Varol

Chicago-Kent College of Law

Harvard International Law Journal, 2012

This Article identifies and examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups d’état under a single framework. That conventional framework considers all military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose an existing regime to rule the nation indefinitely. Under the prevailing view, all military coups therefore constitute an affront to stability, legitimacy, and democracy. Federal law in the United States reflects the same disdain for military coups by prohibiting any financial assistance “to the government of any country whose duly elected head of government is deposed by military coup or decree.”

This Article challenges that conventional view and its underlying assumptions. I argue that although all military coups have anti-democratic features, not all coups are equally anti-democratic. Rather, some military coups are distinctly more democratic than others because they respond to a popular opposition against an authoritarian or totalitarian regime and overthrow that regime for the limited purpose of transitioning the state to a democracy and facilitating the fair and free elections of civilian leaders. Drawing on fieldwork that I conducted in Egypt and Turkey in 2011, this Article sets forth a theory for a democratic coup d’état and examines its constitutional consequences using three comparative case studies: (1) the 1960 military coup in Turkey; (2) the 1974 military coup in Portugal; and (3) the 2011 military coup in Egypt.

Employing a principal-agent framework, I argue that when the military assumes power during a democratic coup, it acts as a self-interested agent and engages in the entrenchment of its policy preferences in the democratic constitution that results from the transition process. Constitutional entrenchment may occur in at least three ways: procedural, substantive, and institutional. First, the military may setup the democratic transition process so that the resulting democratic constitution favors the military. Second, the military may reserve substantive constitutional powers for itself in the democratic constitution. Third, the military may establish counter-majoritarian institutions in the democratic constitution that continue to enforce the military’s policy preferences even after the military relinquishes power to democratically elected leaders. 

Rayburn Yung on Judicial Activism

C. Rayburn Yung "FLEXING JUDICIAL MUSCLE: AN EMPIRICAL STUDY OF JUDICIAL ACTIVISM IN THE FEDERAL COURTS", Northwestern University Law Review, Winter 2011, Vol. 105, Issue 1

Full text available at:

domenica 4 settembre 2011

Letsas on "Harmonic Law: The Case Against Pluralism and Dialogue"

Harmonic Law: The Case Against Pluralism and Dialogue

George Letsas

University College London - Faculty of Laws

June 25, 2011


The paper mounts a critique of ideas of pluralism and judicial dialogue in the European Union. It aims to challenge the orthodox view that legal pluralism in the European Union is an empirical fact, which generates problems of normative conflicts that in turn can be solved through some process of judicial dialogue. The paper argues that this view is premised on a controversial theoretical position about the nature of law, which distorts the normative character of the relationship between different courts in Europe. It then advances an alternative account of law and fundamental rights that both explains why legal conflicts do not exist and offers normative guidance to how European judges and other officials should act.

giovedì 1 settembre 2011

Alemanno and Bonadio on Plain Packaging

Do You Mind My Smoking? Plain Packaging of Cigarettes Under the TRIPS Agreement

Alberto Alemanno

HEC Paris - Law Department

Enrico Bonadio

City University London; The City Law School of City University London

John Marshall Review of Intellectual Property Law, Vol. 10, No. 3, 2011

Plain packaging, a new tobacco control tool that is currently being considered by a growing number of countries, mandates the removal of all attractive and promotional aspects of tobacco product packages. As a result, the only authorized feature remaining would be the use of brand name, which would be displayed in a standard font, size, color and location on the package. In opposing this new strategy, the tobacco industry is particularly keen in emphasizing both the ineffectiveness of plain packaging in reducing smoking rates and its incompatibility with international trademark-related provisions. In particular, the tobacco industry as well as other regulated sectors, such as food, alcohol, and cosmetics, believe that plain packaging jeopardizes their trademark rights and particularly contravenes several trademark-related provisions as enshrined in the TRIPS Agreement and the Paris Convention for the Protection of Industrial Property. This article, after introducing the reader to the genesis and rationale of plain packaging within the broader context of the WHO Framework Convention on Tobacco Control, offers a detailed analysis of the compatibility of this new packaging measure with the international system for trade mark protection as enshrined in the TRIPS.