venerdì 28 settembre 2012
Organizer: Jean Monnet Chair of European Public Law, University of Zagreb, Faculty of Law
The Seminar is aimed for: undergraduate and graduate students of law doctoral students and researchers
junior public servants
A limited number of travel and subsistance grants will be offered to participants presenting a research paper.
Deadline for submission of abstracts (500 words) is January 15, 2012. Selected candidates will be invited to submitt the paper in Dubrovnik. Deserving contributions will be published in the Croatian Yearbook of European Law & Policy.
More information here: http://www.pravo.unizg.hr/EJP/jean_monnet_projekt/dubrovnik_2009/dubrovnik_archive/dubrovnik_2013
giovedì 27 settembre 2012
EU External Relations: the Governance Mode of Foreign Policy
G. de Búrca
"El Instituto Universitario de Estudios Europeos de la Universidad CEU San Pablo tiene el placer de anunciar la publicación del documento de trabajo: “EU External Relations: the Governance Mode of Foreign Policy”, escrito por Gráinne de Búrca.
El análisis de este documento se centra en lo que la autora denomina el modelo de gobernanza de la política exterior de la UE, englobando con este término la tendencia de la UE a actuar colectivamente en lugar de unilateralmente, y a crear e institucionalizar, en una amplia variedad de asuntos, sistemas estables de gobernanza".
full text available at: http://www.idee.ceu.es/Portals/0/Publicaciones/Docuweb%2062%20UE%20(2).pdf
Methods in Comparative Law: An Intellectual Overview
P. G. Monateri
University of Turin, Faculty of Law; Law School, University of Torino (Italy)
September 25, 2012
Published as a first chapter in Monateri, Methods of Comparative Law, Edward Elgar, 2012, this paper aims to bring to bear new thinking on topics including: the mutual relationship between space and law; the plot that structures legal narrative, identities and judicial interpretations; a strategic approach to legal decision-making; and the inner potentialities of the 'comparative law and economics' approach to the field.
Number of Pages in PDF File: 33
Keywords: comparative law, law and economics, understanding, methods, narratives, geopolitics
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151819
domenica 16 settembre 2012
Book Review "Joseph F. Zimmerman, Horizontal Federalism. Interstate Relations, State University of New York Press, 2011"
Joseph F. Zimmerman, Horizontal Federalism. Interstate Relations, State University of New York Press, 2011
The book I am going to review is the brand new volume by Joseph. F. Zimmerman, Professor of Political Science at Albany State University of New York and an outstanding scholar in the field of federal studies.
This book represents just the last link of a longer scientific chain that has led Zimmerman to investigate the burning issue of interstate relations in the US over the years.
Despite its general title it is not a volume on comparative federalism or comparative constitutional law as it looks only at the US experience.
This volume has a twofold goal: on the one hand, the Author aims to give an exhaustive overview of the phenomenon of interstate relations in the American context by providing “detailed information on interstate relations and to analyze their various facets” (p. x); on the other hand, the book has also a normative dimension, since it tries “to advance recommendations to improve the economic union and the political union” (p. x).
The result is a brilliant book which offers a clear but at the same time problematic (since it stimulates questions and new research in this field) view on the state of American federalism.
The starting point of his work is the idea of “contact” between levels that represents a constant element in the progressive shift from a pure dualist view of federalism to the more complex cooperative federal arrangement, as the incipit of the first chapter says “The division of political power in a federal system, between the national government and the states, automatically produces relations between the latter. These horizontal relations may be cooperative as manifested by interstate compacts, uniform state laws, reciprocity statutes, administrative agreements, and regional and national associations of state government officers. Such relations, however, can be hostile” (p. 1).
Cooperation and competition are thus at the heart of the American federal arrangement and starting from this assumption the Author is going to engage with the analysis of some relevant areas where it is possible to find confirmation of this.
After having recalled the “interstate constitutional principles” (p. 10 et seq.) in the first chapter, in Chapter 2 Zimmerman moves to the analysis of the role of the US Supreme Court, acting as a referee in the interstate controversies.
As the Author says at the end of the second chapter, interstate disputes may be solved through an alternative dispute mechanism or thanks to other arenas.
Indeed, in Chapter 3 Zimmerman offers a very interesting account of the interstate and federal-state compacts, presenting a detailed typology of them (p. 45 and seq.).
Chapter 4 is devoted to the full faith and credit clause, a fundamental US provision analysed from the perspective of interstate cooperation.
Chapter 5 focuses on the privileges and immunities clause by taking into account states’ attempts to deny privileges and immunities to residents of other states.
This chapter illustrates the delicate equilibrium between the necessity to guarantee interstate comity and to overcome barriers and discriminations in terms of fundamental rights of the individuals.
The rendition clause is at the heart of Chapter 6, whereby Zimmerman engages with the relevant case law of the US Supreme Court and the role of the legislatures and interstate agreements in this field.
As stressed by Bowman (Ann O’M. Bowman, Horizontal Federalism: Exploring Interstate Interactions, Journal of Public Administration Research and Theory, Vol. 14, no. 4, 2004, pp. 535-546) “theories of horizontal federalism take interstate competition as their starting point” and indeed the idea of interstate competition is key in the analysis of the “Mercantilism problem” (p. 117) and the role of the American judiciary in the progressive removal of trade barriers among states is treated in Chapter 7. However, as Zimmerman writes on page 138, protectionism does not exhaust all the existing forms of interstate economic competition; that is why the Author devotes another chapter (Chapter 8) to the issue of interstate competition for attracting business firms, tourists and gamblers.
Chapter 9 is on interstate tax revenue competition and deals with the “tax differential problem” (p. 159 et seq.) and other related issues. This is another very sensitive field: the US Constitution, on the one hand, seems to favour tax regime variety but on the other hand this phenomenon may create interstate frictions, jeopardizing the federal compact.
In Chapter 10 Zimmerman goes back to the possibility offered by interstate cooperation, by looking at the role played by the National Conference of Commissioners on Uniform State Laws, by ad hoc informal interstate administrative agreements, other national associations or even by the Congress in the promotion of uniform state laws in some sensitive areas.
Finally, Chapter 11 offers a list of concrete proposals for improving horizontal relations, by giving a fundamental contribution to overcoming the existing gap between the importance that this area has de facto and the poor visibility it has on the political agenda of American federalism.
This book is definitely recommended for those interested in American federalism but also offers many interesting points for comparative lawyers although it is limited to the US case. The first and the last chapter, for instance, give an interesting perspective on the relation between competition and cooperation or negotiation and conflicts in federal arrangements and even the solutions proposed in the last part of the book might be of interest to scholars willing to contribute to the development of intergovernmental relations.
Rosa Raffaelli, Gender crimes in the ICC Statute, Stals Research Paper 3/2012 (www.stals.sssup.it)
AbstractThis paper examines the definition of gender crimes in international criminal law. Moving from an analysis of the evolution of the definition of rape, it takes into account the definition of crimes such as sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization. Particular attention is paid to the case law of the existing international criminal tribunals, and to the discrepancies between their interpretations of the crimes, as well as to the relevant jurisprudence of the ECtHR. Finally, taking a critical approach, some amendments are suggested which would ensure that the definitions of gender crimes are constantly updated and ensure full protection of their victims.
KeywordsInternational criminal law; gender; rape; sexual slavery; prostitution; sterilization; sexual violence; women; gender-based violence
Full text available at: http://stals.sssup.it/files/Raffaelli%20STALS%203-2012.pdf
STAFF RESEARCH SEMINARS 2012-2013
• 3/10/2012 Dr Giuseppe Martinico (García Pelayo Fellow
Centro de Estudios Politicos y Constitucionales, Madrid)
“Is the European Convention Going to Be ‘Supreme’? A Comparative-
Constitutional Overview of ECHR and EU Law before National Courts”
• 7/11/2012 Dr Nikos Skoutaris (London School of Economics)
“Federalism: the EU's Uncommon Principle”
• 5/02/2012 Dr Rogier Creemers (University of Oxford)
“Neoliberal Leninism with Chinese Characteristics: Understanding Chinese Communications Regulation and its International Aspects”
AG05 (College Building) 1-3 pm, City University, Law School, London
For further information please contact Dr. Enrico Bonadio at: Enrico.Bonadio.firstname.lastname@example.org
sabato 15 settembre 2012
The Euro Area Crisis and Constitutional Limits to Fiscal Integration
University of Cambridge - Faculty of Law
June 1, 2012
Cambridge Yearbook of European Legal Studies, 2012
University of Cambridge Faculty of Law Research Paper
Against the backdrop of the current euro area crisis and the imbalance at the heart of the Economic and Monetary Union, this paper will explore the current state of fiscal integration, as well as its likely future and limits. It will do so by, first, creating a ‘map to fiscal integration’ that takes into account the degree of legalisation of state cooperation, as well as the subject-matter of particular fiscal rules. The three measures or packs of measures adopted by the euro countries since the start of the crisis will be discussed and located within this map to fiscal integration. The paper will show that a distinction can be drawn between (1) what will be referred to here as ‘balance rules,’ or rules that concern budgetary discipline and balance, and (2) substantive rules or measures that concern the allocation of resources within a state and thus have a distributive or redistributive effect. Once the state of play of fiscal integration is clear, the paper will turn to the shape of future integration in this area, arguing that further fiscal integration — or legal integration that goes beyond balance rules and crosses into the (re)distributive area — is severely limited by the current Treaties and that, moreover, even a hypothetical Treaty amendment with a view to creating a full EU fiscal policy of this kind would run into significant theoretical problems, both as a matter of EU law and of national constitutional law.
Number of Pages in PDF File: 31
Keywords: European Union, European integration, EU law, constitutional law of the EU, Economic and Monetary Union, EMU, euro area crisis, eurozone crisis, fiscal policy, fiscal integration, fiscal union, banking union
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2146141
Judges in Utopia: Fundamental Rights as Constitutive Elements of a European Private Legal Culture
University of Amsterdam - Centre for the Study of European Contract Law (CSECL); University of Amsterdam - Faculty of Law
August 23, 2012
Amsterdam Law School Research Paper No. 2012-89
Centre for the Study of European Contract Law Working Paper Series No. 2012-12
Post-national Rulemaking Working Paper No. 2012-06
This chapter tests the hypothesis that, to the extent that private parties have to respect certain values (expressed in fundamental rights) within the EU legal order, the deliberation of these values may help constitute a legal culture in the field of European private law. The aim of the analysis is to get a better understanding of the judicial processes that generate substantive rules of European private law. In order to assess the validity of the hypothesis, three questions are addressed: Firstly, what is meant by ‘a European private legal culture’? Secondly, how do fundamental values relate to this legal culture? Thirdly, what should be the role of the judiciary in this context? It is submitted that for the hypothesis to have a bearing on reality it is essential that the development and study of legal culture engage with value pluralism in European private law. The judiciary’s contribution to the constitution of a European legal culture may be conceptualized in terms of it applying fundamental rights as ‘deliberative principles’ when deciding ‘hard cases’ of a private legal nature. The input of legal scholars is required for the further elaboration of the institutional framework as well as of the substance of private law in the EU and, this way, of a European legal culture.
Number of Pages in PDF File: 19
Keywords: fundamental rights, European private law, European contract law, legal culture
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145854
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145854
lunedì 10 settembre 2012
Conference: "Diritti e conflitti nel costituzionalismo transnazionale: dal territorio allo spazio. Verso un nuovo (dis-)ordine globale?"
Taken from www.unical.it
"Diritti e conflitti nel costituzionalismo transnazionale: dal territorio allo spazio. Verso un nuovo (dis-)ordine globale?
"Diritti e conflitti nel costituzionalismo transnazionale: dal territorio allo spazio. Verso un nuovo (dis-)ordine globale?
Nel convegno si affronteranno alcune tematiche di fondo del diritto transnazionale: primato della legge/strumenti di soft law; divisione/contaminazione tra diritto pubblico e diritto privato; convergenza/divergenza tra sistemi giuridici (diritto giudiziario e governancegiudiziaria).
L’approccio che si intende utilizzare è quello della ‘logica del paradosso’ attraverso cui si vuole cogliere “l’impossibile possibilità di identità generate da differenze, di aperture prodotte da chiusure” (G. Teubner), affrontando il tema del diritto transnazionale secondo un’ottica multidisciplinare utile a favorire una riflessione critica sulle interconnessioni tra i diversi settori giuridici.
Mercoledì 17 ottobre 2012, ore 10.00 - Sala Stampa - Centro Congressi, Unviersità della Calabria".
Full programme available at the following link: http://www.unical.it/portale/portalmedia/2012-09/LOCANDINA_def.pdf
domenica 9 settembre 2012
The Stability, Coordination and Governance Treaty: Principle, Politics and Pragmatism
Paul P. Craig
University of Oxford - Faculty of Law
July 6, 2012
(2012) 37 ELRev 231
Oxford Legal Studies Research Paper No. 47/2012
The EU financial crisis has generated a range of economic, political and legal responses. This article focuses on one such response, the Treaty on Stability, Coordination and Governance (the TSCG), which was signed by 25 contracting states in March 2012. The discussion begins with the political background to the TSCG, which is essential in order to understand its legal form and content. This is followed by an outline of its principal provisions. There is then more detailed discussion of the core elements of the TSCG, the “balanced budget” rule and the correction mechanism, in order to determine what they add to the existing rules and assess their efficacy.
The focus then shifts to broader issues of principle. The TSCG is of interest not merely for those concerned with economic and monetary union. It raises more fundamental issues of principle concerning the legitimacy of states, together with EU institutions, proceeding outside the confines of the Lisbon Treaty to attain goals that cannot be achieved through normal methods of Treaty amendment. It generates important inquiries concerning the extent to which a Treaty outside the confines of the Lisbon Treaty can confer new powers on EU institutions, and whether existing powers of EU institutions can be used in such a context. It entails significant issues concerning the way in which we interpret provisions of the Lisbon Treaty concerning the European Court of Justice (ECJ) that are directly relevant to the schema of the TSCG. The article concludes by reflecting on some broader legal and political ramifications of the TSCG.
Number of Pages in PDF File: 20
Keywords: international treaty, eurozone, financial crisis, competence
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2115538
martedì 4 settembre 2012
2nd HEC Paris Workshop on Regulation: Regulating Lifestyle Risks in Europe - The Case of Alcohol, Tobacco, Unhealthy Diets & Gambling September, 20-21 2012
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.
This 2-day workshop will thus discuss the emerging global phenomenon of regulating lifestyle risks, also called risk factors, such as harmful use of alcohol, unhealthy diets, tobacco use, and gambling, in light of the legal, political and moral challenges facing any attempt made at regulating individual choices. It targets industry representatives, researchers and academics as well as policymakers and other interested parties, who have to answer the growing calls for regulatory action on lifestyle risk factors and face the difficulty of formulating socially-acceptable and economically-effective policies. The event will be addressing the emerging policy and legal initiatives adopted across jurisdictions by focusing in particular on the role of the EU in developing lifestyle policies and regulations.
For further details and the full programme: http://appli6.hec.fr/forms/risk-regulation-2012/
La aplicación del Derecho de la Unión por el Tribunal Supremo en tiempos de crisis
Full text available: http://www.ucm.es/centros/cont/descargas/documento35614.pdf
sabato 1 settembre 2012
Francesco Palermo, Giovanni Poggeschi, Günther Rautz and Jens Woelk (eds.) Globalization, Technologies and Legal Revolution. The Impact of Global Changes on Territorial and Cultural Diversities, on Supranational Integration and Constitutional Theory. Liber Amicorum in Memory of Sergio Ortino (Nomos, Baden Baden, 2012).
From the website of the EURAC
The book “Liber Amicorum in Memory of Sergio Ortino” is
covering Globalization, Technologies and Constitutional Theory,
Supranational Integration, Federalism and Minorities, Territorial
and Cultural Diversity Management. Colleagues, alumni and
friends of Professor Ortino tried to trace his research approach
looking into new fi elds explaining legal phenomena.
The essays collected in the book look beyond the traditional
academic horizon which was too tight and narrow for Professor
Ortino’s innate search for new challenges, new disciplines and
cross-disciplinary inputs. This ample look was always important
for Professor Ortino in order to deepen the knowledge in fi elds
that are essential to better understand the most profound
reasons of legal phenomena and their evolution. This is why he
could explain legal developments long before others. All his
work, especially in the last twenty years of his extraordinary
career, shows how foresighted he was in his research. He wrote
about globalization long before this fundamental issue became
“fashionable” and analyzed by legal scholars.
All articles in this book are dedicated to exploring new fi elds, to
investigating the relationship between legal phenomena and
economics, anthropology, history, and trends of legal development,
identifying areas where research will be needed in future.
Professor Ortino’s curiosity about Asia and especially China, and
his critical view on the evolution of the European Union are just
two examples which his colleagues, his alumni and friends have
focused on in this commemorative publication.
Postnational Constitutionalism and Postnational Public Law: A Tale of Two Neologisms
University of Edinburgh, School of Law
August 29, 2012
Edinburgh School of Law Research Paper No. 2012/20
This paper examines how ideas of postnational constitutionalism and postnational public law have developed and will likely continue to develop in ways that are in some respects complementary and in other respects in tension. Both terms are neologisms - recently emergent concepts seeking to adapt legal-normative ideas suited to one (state) context to another (postnational) context. To subscribe to either, or to both, is already to take sides against a broad church of postnational sceptics, and instead to view the legal forms and vocabulary of statehood as a mobile resource and as an indispensable part of any answer to the question of the authority of the expanding domain of law beyond the state under conditions of globalisation. Yet beyond this basic threshold of agreement, postnational constitutionalists and postnational public lawyers tend to differ in emphasis. Whereas the former focus on the 'constitutive' or 'input' side of state-like law at the myriad new sites of postnational authority, the latter tend to concentrate on the 'throughput' or 'output' side of state-like law in postnational contexts. For the former, authority and legitimacy tend to be a function of particular pedigree and collective subjectivity, whereas for the latter authority and legitimacy tend to be a function of general ‘public’ norms and procedures and supposedly objective standards.These differences are motivated by normative preferences, and also by differing diagnoses of the postnational environment and different estimations of law's possibilities and limitations under these circumstances. Other approaches that try to reach beyond this normative and diagnostic division to combine or reconcile input and output, particular and general, subjective and objective, must do in appreciation of the fact that the basic opposition in question cannot be entirely eradicated. Rather, it reflects the deep and resilient ambivalence of the aspirational horizon associated with the age of political modernity - as relevant to the postnational phase as to the state-centred phase - in which the values of autonomy and equality within a constructed socio-political project have displaced earlier notions of conformity and status in accordance with a pre-given order of things. For under these modern conditions law must be concerned both to endorse and facilitate the collective pursuit of autonomy and equality and to protect the core individual expression of these values from collective encroachment.
Number of Pages in PDF File: 30
Keywords: postnational, constitutionalism, public law, global administrative law, societal constitutionalism, constituent power, input legitimacy, throughput legitimacy, output legitimacy
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2138145
Transnational Legal Communication: A Partial Legacy of Supreme Court President Aharon Barak
University of Miami - School of Law
August 30, 2012
Tulsa Law Review, Forthcoming
University of Miami Legal Studies Research Paper No. 2012-24
The concept of transnational judicial dialogue has been investigated as a general matter ever since the concept was first introduced by Anne-Marie Slaughter in the early 1990s. This paper uses Slaughter’s concept and expands it in order to assess in greater detail the impact of one particular participant in what this paper call “transnational legal communication”: former President of the Supreme Court of Israel Aharon Barak. The purpose of the article is two-fold. It first analyzes the jurisprudential legacy of President Barak, but it also attempts to create a framework for analyzing the life work of important participants in transnational legal communication more generally.
Number of Pages in PDF File: 28
Keywords: transnational judicial dialogue, transnational legal communication, comparative law, Aharon Barak
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2139053
The Limits of Judicial Fidelity to Law: The Coxford Lecture
Jeffrey Denys Goldsworthy
Monash University - Faculty of Law
Canadian Journal of Law and Jurisprudence, Vol. 24, No. 1, 2011
Monash University Faculty of Law Legal Studies Research Paper No. 14
In this lecture I question my own legalist inclinations, and ask whether judges might sometimes be morally justified in covert law-breaking - whether some measure of judicial subterfuge might be desirable - because it enhances the rule of law, justice or good governance. A plausible argument can be made that judges engage in subterfuge more frequently than we tend to think, and are justified in doing so. My attempt to explore these issues is not an exercise in judge-bashing, and I sincerely hope that no judge will construe it in that way.
Number of Pages in PDF File: 23
Keywords: Kirk, administrative law, states, judges, rule of law, judicial subterfuge
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2138710