mercoledì 25 aprile 2012

Reflections: On Judicial Diversity and Judicial Independence

Sonia Lawrence

Osgoode Hall Law School

JUDICIAL INDEPENDENCE IN CONTEXT, A. Dodek & L. Sossin, eds., Irwin Law, 2010, p. 193

In the Canadian context, judicial independence - the “cornerstone of democracy” - is described as dependent on a wide variety of conditions, including judicial remuneration, court budgets, the discipline of judges, politics and the appointments process, but these do not usually include a diverse judiciary. There is also a significant, but almost completely separate, Canadian literature about diversity on the bench. Why the separation? Part of the reason is that judicial independence (like any concept worth its salt) is not particularly well defined. Attempts at definition are often cabined by jurisdiction or limited to the world of theory. Furthermore, judicial independence is not a “goal in itself,” but rather a means to impartiality and legitimacy, so that links between diversity and legitimacy and impartiality might not explicitly mention judicial independence despite a clear connection. Another possible reason for the paucity of direct considerations of the topic may be the sense that we believe we have established institutional level judicial independence in this country. Thus even the government is prepared to accept that the bench ought to be diverse, and many will recognize the problem of a bench that lacks diversity – but we cannot recognize it as a judicial independence problem. Most of the commentary about judicial independence consists of the argument that a given change or group of changes (usually changes initiated by government) is harming judicial independence. Linking diversity on the bench to judicial independence, on the other hand, would suggest that we have not truly had judicial independence in the past, since historically it has been undeniably a homogenous bench – at least in terms of race, ethnicity and gender. The context of many judicial independence controversies means that arguments for judicial independence are often - read simply - arguments against interference with existing practice. Demand for a diverse bench, in contrast, usually consists of requests for a break with past practice. Establishing the link between judicial independence and diversity on the bench brings in new questions and opens new areas for research and policy making.

In part I of this paper I begin to sketch an answer to the question, “can a homogenous bench be an independent bench?”, focusing on democratic legitimacy, public confidence and the idea of structural impartiality. In part II, I suggest that ‘diversity’ cannot cure the problems that have been identified, and that legitimacy and public confidence require some attention to the courts as representative institutions. I then attempt to sort through the complications arising from this suggestion, and defend the notion of a representative bench from some of the main critiques. Part III briefly describes two systems of judicial appointment in Canada, and the different approaches they take to the question of diversity and representation. Finally, I conclude by describing basic research questions which arise from this exploration, and accepting the limitations of calls for a ‘reflective’ bench.
Number of Pages in PDF File: 24
Keywords: judicial independence, Canada, race, gender, judicial appointments, representation, reflection, judicial appointments processes, data

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Transnational Judicial Governance

Christopher A. Whytock

University of California, Irvine, School of Law

St. John's Journal of International and Comparative Law, Vol. 2, No. 1, p. 55, 2012
UC Irvine School of Law Research Paper No. 2012-39

This symposium essay discusses “transnational judicial governance” — that is, the regulation of transnational activity by domestic courts. Specifically, the essay makes three points. First, transnational judicial governance is an important form of global governance that interacts with, but is distinct from, other forms of global governance such as international institutions, transgovernmental networks, and private governance. Second, there is evidence suggesting that the influence of U.S. courts in transnational judicial governance may be declining as the transnational litigation system becomes increasingly multipolar. Third, transnational judicial governance seems to be a normatively mixed bag — but, for better or worse, it is likely that domestic courts will continue to play an important role in global governance.
Number of Pages in PDF File: 15
Keywords: Global Governance, Courts, International Law, Transnational Law, Regulation, Private International Law, Conflict of Laws, International Relations

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The Principle of Loyal Opposition

Jeremy Waldron

New York University (NYU) - School of Law

December 9, 2011

The Principle of Loyal Opposition is key to the way in which modern democracies organize themselves. It is bound up with the existence of political parties, of which we need to take much more notice in political theory (as Nancy Rosenblum has argued) and with the significance of reasonable disagreement in politics. The principle is exhibited most clearly in systems that actually assign a role to an official Opposition party and an Opposition Leadership. But versions of it are also apparent in American-style constitutions, albeit they are harder to discern in a context in which different functions of government may assigned, branch by branch, to members of different political parties. Finally, the paper interrogates the idea of "loyalty" in "loyal opposition." Loyalty to what? The paper argues that the phrase should not connote any sort of litmus test of support for constitutional essentials, but should rather convey a sense that as far as possible opposition parties are always to be regarded as loyal, no matter what policies or constitutional changes they favor.
Number of Pages in PDF File: 43
Keywords: constitution, constitutional essentials, democracy, loyal opposition, political parties

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The Fascist Mimesis of Spanish International Law and its Vitorian Aftermath

Ignacio de la Rasilla del Moral

European University Institute; New York University (NYU) - Florence

Journal of the History of International Law, Vol. 4, No. 2, 2012

The figure and works of Francisco de Vitoria, the father of international law, have fascinated generations of non Spanish international legal scholars - past and present. These range from classic figures as diverse as the founder of the American Society of International Law, James Brown Scott, or the Crown Jurist of the Third Reich, Carl Schmitt, to the recent post-colonial approaches to international law proposed by Antony Anghie or the most recent inquiries of Martti Koskenniemi on the private law underpinnings that for the universal ordering of international relations were contained in the work of the Spanish Scholastics of the sixteenth century. In this work, which is part of an on-going series, I examine how a climate of severe intellectual repression and organically nationalist-directed scientific work in Spain and the nationalist reaffirmation of a culture grounded in Catholic conservatism and traditionalism fostered the adoption of a marked thematic orientation towards natural law and the reinstatement of the Siglo de Oro’s Salamanca School among Spanish international lawyers after the Fascist Mimesis of Spanish International Law.
Number of Pages in PDF File: 20
Keywords: international law, history of International law, Francisco Vitoria

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The Case for Comparative International Law in Question - A Response to Martti Koskenniemi's The Case for Comparative International Law

Ignacio de la Rasilla del Moral

European University Institute; New York University (NYU) - Florence

Finnish Yearbook of International Law, 2012

Comparative international legal studies are on the rise. One of the reasons for this phenomenon is the contemporary ascendancy of comparative constitutional law. A second contemporary source for the rise of comparative international law is the increasing appeal of comparative regional legal studies. A third related source for the contemporary rise of comparative international law is the on-going scholarly paradigm shift in the study of law that reflects the impact of globalization on the social sciences within which legal studies themselves find their conceptual place. The seemingly ineluctable rise of comparative international law as an academic subject in the twenty-first century makes advisable to review the “scattered, terse even cryptic” recent references one can find in today’s literature about this hitherto little used term among which features interestingly The Case for Comparative International Law by Martti Koskenniemi.
Number of Pages in PDF File: 13
Keywords: International Law, Comparative Law, European Law, Comparative International Law

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Separation of Powers or Division of Power?

Jeremy Waldron

New York University (NYU) - School of Law

April 24, 2012

The rationale of the separation of powers is often elided with the rationale of checks and balances and with the rationale of the dispersal of power generally in a constitutional system. This paper however focuses resolutely on the functional sepaartion of powers in what MJC Vile called its "pure form". Rexeamining the theories of Locke, Montesquieu, and Madison, the paper seeks to recover (amidst all their tautologies and evasions) a genuine case in favor of this principle. The paper argues that the rationale of the separation of powers is closely related to that of the rule of law: it is partly a matter of the distinct integrity of each of the separated institutions (courts, legislature, and administration). But above all, it is a matter of articulated governance (as contrasted with compressed undifferentiated exercises of power).
Number of Pages in PDF File: 33
Keywords: constitutionalism, constitutions, courts, legislature, Madison, Montesquieu, rule of law, separation of powers

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Los Deberes Fundamentales y la Constitución Brasileña
(Fundamental Duties and the Brazilian Constitution)

Julio Pinheiro Faro

Faculdade de Direito de Vitória (FDV)

Revista de Derecho, Valdivia (Chile), vol. 24, n. 1, Jul. 2011, p. 49-57.

Este artículo presenta algunos aspectos de la tan olvidada temática sobre los deberes fundamentales con especial referencia a la Constitución brasileña de 1988. En esto aspecto, el artículo aborda la escasez de estudios acerca de este asunto, ofreciendo algunas ideas sobre la clasificación de los deberes fundamentales, su régimen jurídico-constitucional y sobre el concepto de los mismos. Así, utiliza algunos de los principales trabajos sobre él existentes en la literatura brasileña.
This article intends to present some of the aspects on the forgotten fundamental duties thematic with a special emphasis on the Brazilian Constitution of 1988. Thus, this work takes into account the lack of studies on this matter, bringing some ideas on the fundamental duties classification, legal regimen and concept. For this, it uses some of the main Brazilian works that exists on this matter.
Note: Attached PDF is in Spanish.
Number of Pages in PDF File: 9
Keywords: Fundamental duties, Brazilian Constitution, classification of fundamental duties

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Jeremy Waldron

New York University (NYU) - School of Law

March 15, 2012

This paper considers the political-theory arguments for bicameralism, both in themselves and in their relation to the present debate in the United Kingdom. It explores Bentham's diatribe against bicameralism and it infers that a justification for bicameralism rests on the significance of the difference(s) between the second chamber and the first. If the second chamber is elected, those differences will be partly a matter of the electoral system, the organization of constituencies, and the rhythm of elections. But perhaps the most important difference lies in the way the second chamber is constituted in its relation to the executive. In a Westminster-style system, the first chamber is ordinarily dominated by the executive. The paper makes a number of suggestions about how this can be avoided in the case of an elected second chamber. In this way the principle of the separation of powers is made relevant to the issue of bicameralism.
Number of Pages in PDF File: 26
Keywords: Bentham, bicameralism, constitution, courts, legislative, separation of powers

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La Cour Européenne Des Droits De L’Homme Et Le Droit De L’Union Européenne, Notamment La Charte Des Droits Fondamentaux : Une Gestion Subtile Entre Ajustements Systémiques Et Enrichissements Mutuels
(The European Court of Human Rights and the Law of the European Union, Including the Charter: A Subtle Control between Adjustments of Systems and Mutual Influences)

MarieLuce Paris

affiliation not provided to SSRN

April 1, 2012

L’Union européenne et les droits fondamentaux: les nouveaux défis (The European Union and Fundamental Rights: New Challenges), Claude Blumann, Emmanuel Decaux & Jacqueline Dutheil de la Rochère (eds.), Paris: Pedone, 2012, Forthcoming
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 04/2012

The negotiations of accession of the EU to the ECHR are formally under way to make the EU the 48th Contracting Party to the Convention. Interactions between the two European legal orders already exist and are well known. The ECHR-EU relationship has been developed by the case law of the European Court of Human Rights and the Court of Justice of the EU through a non anticipated but ever more necessary strategic dialogue in order to remedy the lacunae and weaknesses within the normative arrangement of the protection of fundamental rights in Europe. This paper focuses on the role of the ECtHR in relation to EU law. It examines, in light of recent case law (esp. M.S.S. v. Belgium and Greece, Ullens de Schooten and Rezabek v. Belgium, Bayatyan v. Armenia), the spontaneous solutions developed by the Strasbourg Court to deal with the norms of the EU legal order, whether the Court has been confronted with it or inspired by it, in particular by the now binding Charter. The analysis considers how the ECtHR has taken on a prominent role in the interferences between the case law of both courts in this regard and questions how it will be able to assume this responsibility when the ECtHR exercises a direct review of EU norms.

The paper argues that while accession will normalize the ECHR-EU relationships, it will put extreme pressure on the Strasbourg Court. In addition to the considerable workload, and once procedural and technical issues will be dealt with in the accession agreement, the Court will have to deal with more substantial issues regarding its treatment of EU law such as for instance the future of the Bosphorus test or the legitimacy of reliance on the Charter when identifying a consensus in its case law. These issues are specifically linked to its interaction with EU law and its degree of review of EU acts post-accession; they are also very much linked to the more ‘existential’ issue about the role of the ECtHR per se and the kind of justice (individual, institutional or constitutional) it ought to deliver in the future to successfully control and adjust the protection of fundamental rights in Europe for the benefit of the individuals.
Note: Downloadable document is in French.

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Hard and Soft Law: What Have We Learned?

Gregory Shaffer

University of Minnesota - Twin Cities - School of Law

Mark A. Pollack

Temple University - Department of Political Science

April 23, 2012

Minnesota Legal Studies Research Paper No. 12-17

Political scientists and legal scholars have increasingly explored the concepts of hard and soft law in international governance. In this paper for a volume on International Law and International Relations, we review and assess this literature, with a focus on the insights generated by interdisciplinary IL/IR scholarship. We first address the key definitional question, noting the substantial disagreements among positivist, rational institutionalist, and constructivist scholars about the definitions and the key features of hard and soft law. Next, we examine the question of hard and soft law as a design choice, asking under what conditions states (or other actors) might opt for hard- or soft-law commitments in international relations. We distinguish between a nearly ubiquitous functionalist approach and a nascent distributive approach distinctive to contemporary IL/IR scholarship. We then examine the question of how hard and soft law interact in an increasingly complex and fragmented international legal landscape. Finally, we examine the sparse but highly suggestive scholarship on the impact of hard and soft law on legal interpretation, compliance, and effectiveness. We conclude by assessing the value-added, lacunae, and blind spots of the IL/IR literature in this area.
Number of Pages in PDF File: 28
Keywords: hard law, soft law, institutional design, fragmentation, compliance

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domenica 22 aprile 2012

Seminar: “National Constitutions in the European Union: An Essential Foundation or Merely An Element?" LUISS, May 2 2012

Wednesday, May 2, 2012,
h. 4.00-7.00pm
“Sala delle Colonne”
viale Pola, 12
00196 Roma


“National Constitutions in the European Union: An Essential Foundation or Merely An Element?

Sabino Cassese (Italian Constitutional Court)
Peter L. Lindseth (University of Connecticut School of Law – Daimler Fellow, American
Academy in Berlin)
Marcello Clarich (Professor of Administrative Law – Luiss Guido Carli)
Nicola Lupo (Professor of Parliamentary Law – Luiss Guido Carli)
Giovanni Orsina (Professor of Contemporary History – Luiss Guido Carli)
Cesare Pinelli (Professor of Constitutional Law – ‘La Sapienza’ University of Rome)
Mario Telò (Professor of History of Political Doctrines – Universitè Libre de
Bruxelles and Luiss Guido Carli)
Sergio Fabbrini (Director of the School of Government and Professor of Political
Science – Luiss Guido Carli)
Working Language: English
Center for Studies on Parliament (CESP) - tel. 06 85225718

Workshop "National Parliaments in the European Union: What Kind of Role in What Kind of Europe?" LUISS, May 2 2012

 Wednesday, May 2, 2012, h. 9.30-12.30am
“Sala Consiglio”
viale Pola, 12
00196 Roma
National Parliaments in the European Union:
What Kind of Role in What Kind of Europe?
Carmela Decaro (Luiss Guido Carli)
h. 9,45 Lecture
Peter L. Lindseth (University of Connecticut School of Law – Daimler Fellow, American
Academy in Berlin)
h. 10,15 Presentations
Cristina Fasone (Luiss Guido Carli), Competing Concepts of Subsidiarity and the
Early Warning Mechanism
Elena Griglio (Senate of the Italian Republic), National Parliaments in the new
European Economic Governance
Giovanni Piccirilli (Luiss Guido Carli), The “Immutability” of Italian Parliamentary
Rules of Procedure after the Treaty of Lisbon
h. 11 Discussants
Davide A. Capuano (Senate of the Italian Republic)
Antonio Esposito (Italian Chamber of Deputies)
Luigi Gianniti (Senate of the Italian Republic)
Giovanni Rizzoni (Italian Chamber of Deputies)
h. 12 Q&A
h. 12.15 Conclusion
Marco Olivetti (University of Foggia)

Working Language: English
Center for Studies on Parliament (CESP) - tel. 06/85225718

Summer School “Parliamentary Democracy in Europe”

Summer School “Parliamentary Democracy in Europe”

“National Parliaments, Local Government and Civil Society within the EU Decision-making Processes.
Controlling Compliance with the Principle of Subsidiarity”

LUISS School of Government

Rome, 16-20 July  2012

 Applications by 11 May 2012

Especially after the Treaty of Lisbon, the evolution of the European decision-making process towards the full enforcement of the principles of representative and participatory democracy requires to be studied in depth. This summer school untangles these issues and provides its participants with a map of the current state of the European Union democracy by scoping interactions among national legislative bodies, regional and local authorities and civil society when EU decisions are taken. Hence, students will be confronted with the multifaceted dimensions of the principle of subsidiarity within the European Union – both legal and political, linked to the problem of the multilevel government, the constitutional identities of Member States and the principle of proximity – and provided with the experiential knowledge and practical experience for understanding its enforcement challenges.
 The need to combine theory with practice in understanding the future of Europe’s democracy is reflected in the Faculty, which includes world-class academics and experienced officials from European, national and regional institutions.
This intensive summer course is organised in cooperation with Nova Universitas, a well-established Italian university consortium that, by bringing together knowledge and experience of academics and professionals from different fields, aims at generating opportunities for reviving the spirit of the early University in today’s modern society. The consortium is made up of the following universities: Bicocca University – Milan, Federico II University – Naples, Luiss Guido Carli University – Rome, Macerata University, Udine University, Catania University, Second University of Naples.

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lunedì 16 aprile 2012

Chevron and Constitutional Doubt

Jonathan D. Urick

University of Virginia School of Law

Forthcoming, Virginia Law Review, Vol. 98, December 2012

Federal agencies regularly swim in murky constitutional waters. Established principles of statutory interpretation, however, leave federal courts adrift amid these dangerous shoals. When faced with agency interpretations that raise constitutional doubts, courts are potentially caught in a bind. On the one hand, the famous rule of Chevron U.S.A. Inc., v. Natural Resources Defense Council instructs courts to defer to an agency’s reasonable interpretation of its own statute. Cutting against deference, the longstanding canon of constitutional avoidance counsels courts when possible to choose a statutory construction avoiding serious constitutional doubts. Since the Supreme Court’s Chevron opinion offers little guidance on interpretive methodology, the solution to this dilemma is far from clear. Although the Supreme Court has resolved the conflict in favor of the avoidance canon, the Court’s rationale remains somewhat of a mystery. Commentators generally tell a story of policy. This Note offers an alternative account rooted in history and congressional intent.

As this Note seeks to demonstrate, by the time Chevron was decided there was a plausible background understanding that constitutional avoidance displaces judicial deference to administrative statutory interpretation. Further, given its historical foundation, this understanding is especially important because it can potentially be attributed to Congress as an implied limitation on agency discretion to resolve statutory ambiguity. Applying avoidance to displace Chevron would thus follow from the common textualist practice of reading statutes in light of established background conventions. If true, this Note’s historical account establishes a mandatory, rather than merely prudential, limitation on the presumed delegation of interpretive authority behind Chevron deference. Commentators are thus wrong to conclude automatically that all norms and canons grounded in common law must yield to Chevron doctrine. As this Note contends, the interpretive analysis is not nearly so simple. Whatever questions surround a canon’s origins, longstanding court practice is an important yet currently undervalued consideration when resolving the interaction between Chevron and established canons of construction.
Number of Pages in PDF File: 46
Keywords: Legislation, Statutory Interpretation, Textualism, Chevron Deference, Administrative Law, Legal History

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What Can International Relations Learn from International Law?

Jeffrey L. Dunoff

Temple University - James E. Beasley School of Law; Harvard Law School

Mark A. Pollack

Temple University - Department of Political Science

Temple University Legal Studies Research Paper No. 2012-14

International Relations has rediscovered the study of international law in recent years. And yet, this new “IL/IR” scholarship has been highly unbalanced, with political science scholars paying little or no attention to the potential contribution of international legal scholarship, which is seen as excessively formalist and blind to the realities of modern power politics. Ironically, by ignoring what lawyers know about how international law operates, IR scholars themselves unwittingly fall prey to a type of formalism that is insufficiently attentive to the practical realities of how the international legal order works. Happily, IR scholars can remedy these defects by drawing upon the theoretical frameworks and empirical analyses of their counterparts in law. To encourage such an engagement, this paper proceeds in three parts. Part I provides a thumbnail history of the relationship between the disciplines, including their post-war estrangement, the recent rapprochement, and the unbalanced terms of trade between the two disciplines today. Part II sets out a brief primer on the leading theoretical approaches to international law, demonstrating that the common image of international legal scholarship as overly formalistic and blind to political realities is simply incorrect, and that IL scholarship offers important insights into issues that political scientists care about. Part III turns more directly to how international legal thought can advance IR thinking. We identify several concepts – which we call process, power, pluralism, and normativity – that are central to legal analysis but often overlooked or treated differently in IR scholarship. Next, by way of example, we highlight three broad areas of inquiry – the making, interpretation, and enforcement of international law – where international law approaches can make a distinctive contribution to IR scholarship.
Number of Pages in PDF File: 52
Keywords: International law, international relations, interdisciplinary, international legal theory

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The Reality of EU-Conformity Review in France

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU directive enforcement and similar willingness to refer questions to the ECJ for preliminary rulings demonstrate that, despite adopting dissimilar approaches to the supremacy of Communitarian law, French judges have flourished as Communitarian law judges. The article concludes by presenting an explanation for this high degree of convergence: French judges, responding to growing European integration and enabled by a changing constitutional landscape, adjusted their views to ensure they would have a role in molding the integration of national and EU law.
Number of Pages in PDF File: 44
Keywords: EU Law, Conformity Review, Choice of Law, Comparative Law, Judicial Review

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The Limits of WTO Adjudication: Is Compliance the Problem?

Juscelino F. Colares

Case Western Reserve University - School of Law

Journal of International Economic Law, Vol. 14, No. 2, 403-36 (2011)

Mainstream international trade law scholars have commented positively on the work of World Trade Organization (WTO) adjudicators. This favorable view is both echoed and challenged by empirical scholarship that shows a high disparity between Complainant and Respondent success rates (Complainants win between 80 and 90 percent of the disputes). Regardless of how one interprets these results, mainstream theorists, especially legalists, believe more is to be done to strengthen the system, and they point to instances of member recalcitrance to implement rulings as a serious problem. This article posits that such attempts to strengthen compliance are ill-advised. After discussing prior empirical analyses of WTO adjudication involving primary rights and obligations under the WTO agreements (i.e. substantive adjudication), this article expands the empirical study into compliance disputes. It finds that ‘enforcement’ proceedings do protect the pro-free trade interests so overwhelmingly supported in substantive adjudication. Since that is the case, this article investigates the extent to which current levels of non-compliance might constitute a threat to this regime, and theorizes that the observed level is not only acceptable but a necessary feature of the system. I conclude by arguing that compliance-related issues must be viewed in a broader perspective that transcends narrow legalistic views and accounts for the multifaceted interests of, and differences among, WTO members. 

‘Where Angels Fear to Tread’: The EU Law of Remedies and Codification of European Private Law

Dorota Leczykiewicz

University of Oxford - Faculty of Law

European Review of Contract Law, Vol. 8, pp. 47-81, 2012
Oxford Legal Studies Research Paper No. 18/2012

The article considers the impact of codification of European Private Law on the EU law of remedies. It discusses the ‘culture’ of the existing remedial arrangement in the EU and highlights its main advantages, such as its organic, nuanced and diversified character. It then considers the features and effects of codification and discusses how the operation of the EU law of remedies might be affected by a European codification of such branches of private law as contractual liability, non-contractual liability and unjust enrichment. As for the content of the codified rules, the article looks at the Draft Common Frame of Reference (the DCFR) as the most prominent of the European Private Law codification documents and contrasts the rules proposed in this document and the existing structure of the EU law of remedies. It incorporates in its analysis the recent proposal for Regulation on a Common European Sales Law and explains why its impact on the existing EU law of remedies will be very limited. The article then examines the general threats posed by codifying the law of remedies, in particular the threat of imploding the existing limits of the effectiveness of EU norms in national courts. It argues that any codification proposal should above all be sensitive to the constitutional and institutional arrangement of the EU legal system and respect the division of competences between the Court of Justice and national courts.
Number of Pages in PDF File: 36
Keywords: European private law, EU law, remedies in EU law, codification, Draft Common Frame of Reference

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A Problem of Power: The Impact of Modern Sovereignty on the Rule of Law in Comparative and Historical Perspective

Sovereignty may be seen as the essential ground or origin of legal authority; the sovereign is that person or group whose will must be expected to prevail. Important concrete principles and practices flow from this assumption. One cannot sue the sovereign because this would give courts the power to command their superior, undermining the sovereign’s role as supreme lawgiver. National governments can only be bound by treaties to which they have given their assent, lest their sovereign self­mastery be denied. According to this view, there must be a source of law above the law or there is no real, full law of any kind, only conflict over what the law ought to be. 

Towards a Borgean Theory of Constitutional Interpretation

Marco Jimenez

Stetson University College of Law

Pepperdine Law Review, Forthcoming

This Article presents a reworking of Jorge Luis Borges’ short story, Pierre Menard, Author of the Quixote, as applied to the U.S. Constitution. In Borges’ original story, which deals with important issues governing interpretation, the creation of meaning, and the ascertainment of original intent, Borges’ fictional scholar, Pierre Menard, undertakes to translate Cervantes’ Don Quixote for a modern audience by creating a Quixote that could have been written by Cervantes today. To do so, Menard begins by immersing himself in the world of 17th century Spain, much as an originalist today might immerse him or herself in 18th century America, as a first step in providing an accurate, yet modern, “translation” of the text. As he undertakes the process of translation, however, Menard comes to recognize that the words and phrases used by Cervantes have come to mean something quite different today. Further, he realizes that any change to the words themselves would fail to produce a truly modern translation of this canonical text because it would cause the loss of textual richness and interpretative understanding accumulated over generations. Therefore, in a stroke of genius, Menard recognizes that the best way to translate the Quixote to preserve the text’s modern meaning is to produce word-for-word, line-for-line “translation” of the antiquated original! It is important to note that Pierre Menard adamantly maintains that his word-for-word rendition of the original words is not simply a “copy” of the original text. Rather, as Borges’ original story suggests, Menard has actually produced a much more nuanced text than Cervantes, one that, though verbally identical, “is almost infinitely richer” in that the words penned by Cervantes no longer mean what they once did, but have become imbued with the accumulated historical understanding of many generations.

The parallels to the current debate surrounding the interpretation (or translation, if you will) our own Constitution are unmistakable. The words no longer mean what they once did, and the best way to convey the current meaning of the Constitution is by using the antiquated words and phrases of the 18th century original. These words and phrases, though they have themselves remained the same, are now viewed through the lens of the historical events (e.g., the Civil War, Reconstruction, and New Deal) and judicial precedents (e.g., the Dred Scott decision, Plessy v. Ferguson, and Brown v. Board of Education) so powerful as to have changed the meaning (though not the spelling) of the words themselves!

Therefore, in the text that follows, I have attempted to present these parallels by adapting Borges’ story to the U.S. Constitution. I have tried to keep as much of Borges’ original text as possible – including even the structure of his seemingly obscure academic footnotes – while changing what was necessary of the characters, footnotes, and themes to discuss legal, rather than literary, topics.

More specifically, in my version of the story, I attempt to propose, through the text, and develop, through the footnotes, a theory of constitutional “interpretation as translation” based on the scholarship of Borges’ fictional character, Pierre Menard, as told by a law professor intimately familiar with Professor Menard’s work. In my version, Professor Menard takes it upon himself to update and revise the U.S. Constitution for the twenty-first century and, in so doing, is confronted with a difficult problem of preserving the document’s modern meaning. Professor Menard acknowledges that many of the original words, phrases, and clauses used by the Framers have taken on new meaning over time, or have lost their meaning altogether, which renders the process of interpretation particularly elusive and odious. In a deeply profound exploration of the meaning of meaning, Professor Menard comes to the stark realization that his project of updating the Constitution for the modern generation must necessarily consist not in interpreting the text, but in translating it.

Having made this methodological leap, Professor Menard is next faced with the daunting task of choosing carefully the words, phrases, and clauses that will convey to the modern generation how the Constitution’s text, which was drafted over two centuries ago, should be understood today. Here, Professor Menard makes his second leap: given that the words of the constitution have become imbued with new meaning over time, in part due to historical circumstances, in part due to subsequent legislation, and in part due to judicial “interpretation” and development, the best way of “translating” the Constitution to capture and preserve how it is commonly understood today consists, ironically, in rewriting the text so that it is identical to the original! In undertaking this task, Professor Menard shows how constitutional “interpretation,” even (especially) while remaining faithful to the original text, can be better thought of not as an act of constitutional discovery, but one of constitutional creationism, in which the reader (usually a judge, but arguably the governed) creates meaning by translating and transforming the source text into something simultaneously new and familiar. This places Professor Menard’s theory in the unique position of both accepting textualism while rejecting its usual bedfellow, originalism, at least as that latter concept is commonly understood today. According to Professor Menard, original intent is relevant only to the extent that We The People of the here and now have interpreted this intent, but by this point, it is our contemporary translation (or interpretation, if you prefer) of the Founders’ intent, rather than the Founders’ intent itself, that ultimately controls and governs what we call meaning.
Keywords: Constitution, Constitutional Law, Interpretation, Law & Literature, Borges, Originalism

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Bjorge on the Strasbourg Jurisprudence

The Courts and the ECHR:
A Principled Approach to the Strasbourg Jurisprudence

Eirik Bjorge

University of Oxford - Corpus Christi College; University of Oslo

April 13, 2012

Oxford Student Legal Studies Paper No. 01/2012

How ought the courts to approach a question under the European Convention on Human Rights which has not four-square been settled by the European Court of Human Rights at Strasbourg?
This article argues in favour of an approach to Convention rights by national courts that focuses on the principles to be found in the ECHR as developed by the European Court. This is in some contrast to the approach currently adopted by the majority of the UK Supreme Court, in for example Ambrose. The suggested approach is more in line with the general approach of the common law to legal precedent, which for more than a hundred years has been that the courts in reaching their decision in each case draw upon the principles established in earlier authorities.
Number of Pages in PDF File: 23
Keywords: Ullah, ECHR, UK Supreme Court, Ambrose, 'no more, no less', principled approach

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lunedì 9 aprile 2012

Call for Papers - 2nd HEC Paris Workshop on Regulation

In September 2011, the UN General Assembly declared that the global burden and threat of non-communicable diseases (NCDs) constituted one of the major challenges for development in the twenty-first century: in 2008, 36 of the 57 million deaths globally (63%) were attributed to NCDs, including cardiovascular diseases, cancers, chronic respiratory diseases and diabetes. By recognizing NCDs as largely preventable, it urged the international community to take action at global, regional and national levels to prevent and control their surge. To this end it recommended the adoption of a 'regulatory mix' of multi-sectoral, cost-effective, population-wide interventions in order to reduce the impact of the common NCD risk factors, namely tobacco use, harmful use of alcohol, unhealthy diets and lack of physical activity. Yet how to respond to the growing incidence of NCDs is a major source of complexities in risk analysis and regulatory decision-making: the conditions in which people live, poverty, uneven distribution of wealth, lack of education, rapid urbanization and population ageing, as well as the economic, social, gender, political, behavioral and environmental determinants of health are all contributory factors to the prevalence of NCDs. At the same time, the legitimacy, the effectiveness as well as the design of any regulatory intervention aimed at promoting healthier lifestyle remain highly contested.

The European Union has recently recognized the growing impact of NCDs on the EU's economy and the well-being of its citizens and has consequently started to develop policies intended to tackle the four main factors to which they are linked. Nevertheless, if common themes emerge between the different EU policies intended to promote healthier lifestyles, no attempt has yet been made to systematize them.

We therefore propose to hold a two-day workshop with selected speakers and discussants to identify horizontal, common themes and determine whether the lessons learned in relation to each area of EU intervention may be transposed to the others. More generally, this workshop will offer an opportunity for researchers (PhD students, post-docs, researchers and established academics), policy makers and other stakeholders to reflect on the role which the European Union should play in promoting healthier lifestyles, in light of the moral, philosophical, legal and political challenges associated with the regulation of individual choices. Special attention will be paid to the role that the relevant industries may realistically be called to play in tackling the rising tide of NCDs.

The questions the workshop will focus on include (but are not limited to):

- the role of the EU in promoting healthier lifestyle and how powers should be shared between the EU and its Member States in public health matters;
- the role of consumer information, taxation, reformulation and marketing restrictions with regard to tobacco, alcohol and unhealthy food in promoting healthier lifestyles and their impact on the EU internal market;
- the international role the EU can/should play and its relationship with the World Health Organization and other international organizations, as a result of the conclusion of the Framework Convention on Tobacco Control (FCTC), the 2004 WHO Global Strategy on Diet, Physical Activity and Health and the 2007 WHO Global Strategy to Reduce Harmful Use of Alcohol;
- identification of the drivers behind the emergence of an EU lifestyle policy: is there an economic case for regulating lifestyle health risk determinants?
- the role of the EU impact assessment system in the preparation of legislative proposals and rule-making;
- the role played by the principles of transparency, consultation, and proportionality in ensuring that the legitimate interests of key stakeholders are sufficiently taken into account;
- the role of various stakeholders in supporting healthier lifestyles, including the role of the EU Platform for Action on Diet, Physical Activity and Health and the EU Alcohol and Health Forum;
- the assessment of different policy initiatives to determine the most appropriate forms of intervention (statutory regulation, self-regulation, co-regulation, nudges) in relevant policy areas;
- the challenge of integrating the findings of behavioral research into lifestyle policy-making, in particular the potential role and legitimacy of nudge-inspired measures in changing individual behavior and establishing social norms;
- the extent to which tobacco control may represent a blueprint for the regulation of lifestyle risks in the EU; - what the specific characteristics of EU regulation are that make problems easier or harder to solve than at national level;
- the extent to which the particular vulnerability of children requires a targeted regulatory intervention;
- the role the right to health and other fundamental rights should play in the debate;
- the impact of lifestyle regulation policies on the IP system, such as trademarks, and technological innovation, such as e-cigarettes, food reformulation and food supplements;
- the extent to which it is beneficial and justified to talk about an emerging EU lifestyle policy;
- the constraints imposed by the WTO Agreements to the emergence of a EU lifestyle regulation policy.


- Alberto Alemanno, Associate Professor of Law at HEC Paris and Editor of the European Journal of Risk Regulation
- Amandine Garde, Senior Lecturer in Law and Director of the Durham European Law Institute, Durham University

The event will consist of a two-day workshop to be held at HEC Paris Campus on 27 and 28 September 2012. The workshop is supported by the Jean Monnet Chair in EU Law & Risk Regulation as well as by the HEC Paris Foundation.

It is anticipated that the papers presented at the workshop will form the basis of an edited collection.

Please submit an abstract of between 300 and 500 words, including a title, to :
- Alberto Alemanno, and
- Amandine Garde, by Tuesday 22nd May 2012.


Bartrum on Interpretative Theory Choice

Constitutional Value Judgments and Interpretive Theory Choice

Ian C. Bartrum

University of Nevada, Las Vegas, William S. Boyd School of Law

Florida State University Law Review, Vol. 40, No. 2, 2013
UNLV William S. Boyd School of Law Legal Studies Research Paper

Philip Bobbitt’s remarkable work describing the ‘modalities’ of constitutional argument is an immense contribution to the study of constitutional law. He describes a typology of six forms of argument alive in our interpretive practice, and offers a limited account of how these modalities interact, and sometimes conflict, in actual constitutional decisions. One of the persistent puzzles Bobbitt’s description leaves open, however, is how we should account for the choice between conflicting modalities in cases where that choice is likely outcome-determinative. Because the modalities are ‘incommensurable’ — a term’s meaning in one modality may not be fully translatable into another — there is no internal way to justify the choice of one approach over another. Bobbitt ultimately concluded that such acts of ‘decision’ are the product of ‘judicial conscience’; which some individuals possess (or exercise) to a greater degree than others.

I have always felt that Bobbitt’s resolution is probably correct, but still unsatisfying. I think we can do a little more to explain the processes of interpretive theory choice, even if those choices ultimately remain idiosyncratic and individual. To that end, I look to another account of choices made between incommensurable theories — that Thomas Kuhn gave in his work on scientific paradigm changes. Kuhn argued that, while no universal algorithm defines a ‘correct’ decision to adopt a new scientific paradigm, there are broadly shared choice criteria or ‘values’ that scientists regularly refer to when justifying their decisions. It is, Kuhn suggested, the scientist’s willingness to discuss and explain these underlying value judgments that makes her approach ‘scientific.’

This paper attempts to apply some lessons from Kuhn’s work to constitutional practice, particularly the choices we must make between Bobbitt’s interpretive modalities in outcome determinative cases. I derive a list of four overlapping and sometimes competing ‘constitutional values’ — constraint, flexibility, representation, and identity — from texts in the constitutional canon. I look to the canon because it important that the values I identify are broadly shared, as that is what allows them to serve as a somewhat ‘objective’ set of choice criteria. That is, when we make an interpretive theory choice, we should justify it in terms of the purposes we widely believe the Constitution serves in our legal practice. I then speculate on the ways that underlying value judgments may have influenced interpretive theory choices in several Supreme Court opinions, and conclude that judges should be more transparent in acknowledging and defending these often obscure processes. 

domenica 8 aprile 2012

Ralston on Dewey and Hayek

Dewey and Hayek on Democratic Experimentalism

Shane J. Ralston

Pennsylvania State University - Hazleton

April 5, 2012

Michael Dorf and Charles Sabel invoke John Dewey’s “pragmatist account of thought and action” as the “backdrop” for their theory of democratic experimentalism, an approach to governance emphasizing judicially monitored local decision making within a system of decentralized administrative authority. Little credit is given to the Austrian economist Friedrich Hayek and, what we would call today, his “neo-liberal” ideas as seminal influences on the theory of democratic experimentalism. Indeed, Sabel has been highly critical of Hayek’s ideas. Yet, an argument can be made that democratic experimentalism is at least loosely Hayekian. Hayek’s notion of a spontaneous order bears some resemblance to what Dorf, Sabel and others call a democratic experiment. Minimizing democratic experimentalism’s debt to Hayek may seem unsurprising given the tendency among democratic theorists to bifurcate the forum and the market, preferring deliberation to catallaxy. However, Dorf and Sabel gladly embrace the model of flexible entrepreneurial firms in their theory of democratic experimentalism. By preferring Dewey to Hayek, though, they ignore the fundamental role of implicit knowledge in structuring decentralized information networks and underestimate the threat of strategic action to the dialogic process of rule-making. Institutions other than markets can spontaneously evolve once a legal framework is in place, thereafter structuring experimental problem solving and democratic decision making in a Deweyan-Hayekian spirit, that is, by choosing means in the absence of predetermined ends or preferred end-states. One implication of my analysis is that Dewey and Hayek’s ideas are more compatible than most democratic theorists and political philosophers will admit. Evidence of this compatibility opens the door for creating and evaluating democratic experiments within a Deweyan-Hayekian theoretical framework, as well as extending the framework to other areas of political inquiry.
Number of Pages in PDF File: 28
Keywords: Dewy, Hayek, democratic experimentalism

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mercoledì 4 aprile 2012

Kocharov (ed), Another Legal Monster? An EUI Debate on the Fiscal Compact Treaty

On 1 February 2012, member states of the European Union minus the United Kingdom and the Czech Republic agreed on the text of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (the Fiscal Compact Treaty or FCT), subsequently signed on 2 March 2012. The new international treaty poses a number of questions on compatibility with EU law, implications for the Union legal system, institutional balance, national sovereignty and democratic accountability. The EUI debate on the FCT addressed some of these issues.

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Makela on Metaphors and models in legal theory

Metaphors and Models in Legal Theory

Finn Makela

Faculty of Law, Université de Sherbooke

(2011) 52 Les Cahiers de Droit 397

In this article, the author argues that metaphors can be used as the basis for creating models in legal theory. Drawing on the literature on metaphor from the philosophy of language, he contends that metaphors are best understood as speech acts that propose a hypothesis of similarity between two separate domains. This kind of domain mapping, he argues, is the same procedure that underlies many scientific models, which allow us to transpose our understanding of well-understood phenomena to other areas of inquiry. He concludes with the assertion that — far from being merely ornamental uses of language or rhetorical devices — metaphors are important methodological tools in both the construction and critique of legal theory. 

Hofmann and Morini on Pluralisation of the EU Executive

Constitutional Aspects of the Pluralisation of the EU Executive Through ‘Agencification’

Herwig C.H. Hofmann

Universite du Luxembourg - European Law

Alessandro Morini

affiliation not provided to SSRN

March 30, 2012

University of Luxembourg Law Working Paper No. 2012-01

The Treaty of Lisbon has put emphasis on a more strict separation of executive functions between the EU and the Member States. At the same time it attempts to concentrate more executive powers on the Union level in the hands of the Commission. This article argues that the Treaty of Lisbon’s innovations have some paradoxical effects. In reality they favour the ongoing diversification towards more hybrid and collaborative executive structures. The article discusses, from the point of view of an EU constitutional law, possible explanations and models for understanding and assessing the ongoing delegation of powers.
Number of Pages in PDF File: 41

Debating the Hungarian Constitution, Roundtable Discussion @ the EUI

taken from:

The new Hungarian Constitution, the Fundamental Law of Hungary that entered into force on 1 January 2012 has attracted a great deal of criticism and debate worldwide. Hailed by its proponents as the act that completed the transition to democracy, it was criticized by others as an undertaking that ends constitutional democracy in Hungary by removing checks on the power of the government and putting virtually all power into the hands of the current governing party for the foreseeable future.
The Roundtable discussion will raise fundamental issues linked to the Hungarian Constitution inviting key participants and observers of the Hungarian constitution making process: 


Jakab on the Legitimacy of the new Hungarian Constitution

On the Legitimacy of a New Constitution - Remarks on the Occasion of the New Hungarian Basic Law of 2011

András Jakab

Max Planck Institute for Comparative Public Law and International Law, Heidelberg

April 3, 2012

One of the most frequently asked questions in any constitution-making process, in terms of both the former Hungarian constitution and the new Basic Law, is to what extent they were, are or will be legitimate. To be able to answer this, one needs to enter into some general theoretical considerations as to the function of constitutions.Modern constitutions are generally expected to do three things: to be a means of legal self-restraint for the political power (as expressed by the protection of fundamental rights and the idea of the separation of powers), to establish (constitute) the most important institutions of the state in a democratic way, and to be symbols that bind the community together. This essay examines these three requirements, arguing that any constitution that fullfills these may be regarded as legitimate (i.e. worthy of being obeyed). The closing part of the essay, in turn, contends that the procedure of constitution-making is not important in terms of legitimacy.
Number of Pages in PDF File: 11
Keywords: legitimacy, Hungary, constitution, basic law, the Doctrine of the Holy Crown, judicial review, procedures of constitution-making

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