giovedì 18 ottobre 2012

The Varieties of Comparative Institutional Analysis

Daniel H. Cole 

Indiana University Maurer School of Law; Indiana University School of Public and Environmental Affairs; Indiana University Bloomington - Workshop in Political Theory and Policy Analysis

October 16, 2012

This paper, written as a contribution to a festchrift in honor of Neil Komesar, subjects his "comparative institutional analysis" (CIA) to a comparative analysis with various other social-scientific approaches to CIA.

Neil Komesar is among the very few legal scholars who has taken to heart Ronald Coase's call for comparative institutional analysis (CIA) of alternative "social arrangements." While Komesar has plowed a relatively lonely furrow in the legal academy, scholars from across the social sciences have been engaged in CIA (broadly defined), using various terminologies, methodologies, and evaluative criteria. This paper takes a pluralistic approach to understanding the differences in approach to CIA and seeks to explain them functionally. That is, scholars' preferred definitions of terms like "institution" and "organization," as well as different methods and criteria for comparison, can best be explained in light of the specific kinds of questions they are seeking to answer.

After delineating and categorizing along two dimensions 17 distinct definitions of the term "institution," as used in the social-scientific literature, this paper examines more closely the two, significantly different, approaches to CIA taken, respectively, by Neil Komesar and the late Elinor Ostrom. The purpose of the comparison is not to argue that one's approach is necessarily preferable to that of the other, but merely to illustrate how differences in approaching CIA may depend on what social phenomena the scholar is attempting to understand and explain, and whether the purpose of the analysis is positive or normative.

The paper concludes with a call for more cross-disciplinary communication among scholars engaged in various forms of CIA, not necessarily for the purpose of consolidation or standardization, but simply to better understand one another and the possible functional reasons for differences in approach.
Number of Pages in PDF File: 28
Keywords: Comparative Institutional Analysis, Institution, Organization, Rule, Action Situation, Framework, Model, Theory

mercoledì 17 ottobre 2012

Research Report- References to the Inter-American Court of Human Rights in the case-law of the European Court of Human Rights

References to the Inter-American Court of  Human Rights in the case-law of the European Court of Human Rights

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Images in/of Law

Jessica M. Silbey 

Suffolk University Law School


New York Law School Law Review, Vol. 57, p. 171, 2012/13
Suffolk University Law School Research Paper No. 12-37 

The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and shared language. It canvasses the law and film scholarship, provides examples of film evidence that renders judgment problematic, and predicts future legal terrain in which visual images will feature prominently. It concludes by calling for a theory of aesthetics in order to analyze and interpret the visual images that will take center stage in so many contemporary legal debates.
Number of Pages in PDF File: 14
Keywords: film, evidence, law and humanities, constitutional law, gaming, cultural study of law, intellectual property, virtual reality

Subsidiarity for a Changing Union

Emanuela Carbonara 

University of Bologna - Department of Economics

Barbara Luppi 

Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics; University of St. Thomas School of Law, Visiting

Francesco Parisi 

University of Minnesota - Law School

September 28, 2012

Research Handbook on Economics of European Union Law, 95-110 (Elgar, 2012)
Minnesota Legal Studies Research Paper No. 12-52 

In this paper, we develop an economic model of subsidiarity and discuss the ways in which this instrument should best be applied in the context of a changing European Union. The results suggest that the application of the subsidiarity test in the context of a union with growing membership requires both a prospective and retrospective analysis of the reallocation of competences between states and Union. Absent such a dynamic application, the instrument of subsidiarity could become an instrument of entrenched centralization, contrary to its historical origins and functional purpose.
Number of Pages in PDF File: 27
Keywords: subsidiarity, centralization, devolution

Legal and Political Theory in the Post-National Age: Introduction

Péter Cserne 

University of Hull

Miklós Könczöl 

Durham University; Pázmány Péter Catholic University

August 22, 2011

Legal and Political Theory in the Post-National Age, Péter Cserne and Miklós Könczöl, eds., Peter Lang, August 2011 

This is a short introduction to the first volume of the Central and Eastern European Forum for Legal, Political and Social Theory Yearbook series, entitled Legal and Political Theory in the Post-National Age.

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Law and Development 50 Years On

David M. Trubek 

University of Wisconsin Law School

October 15, 2012

International Encyclopedia of Social and Behavioral Sciences (Forthcoming)
Univ. of Wisconsin Legal Studies Research Paper No. 1212 

Law and development refers both to organized efforts to transform legal systems in developing countries to foster economic, political and social development and to the academic projects stimulated by these efforts. Begun in the mid-20th century, law and development's dominant ideas and projects have changed over time as theories of development and agency priorities have changed. Law and development efforts accelerated in the 1990s as international financial institutions began to emphasize the rule of law. As the 21st century dawned, ideas and projects of the 20th Century were assessed and critiqued and new themes have emerged.
Number of Pages in PDF File: 12
Keywords: Legal Institutions and Development, Economic Development, Modernization, Rule of Law

Constitutionalism and the Poor

Mark Kende 

Drake University Law School

October 16, 2012

Drake Law Review, Forthcoming
Drake University Law School Research Paper No. 12-27 

United States constitutional law and theory has not focused on the poor lately. Yet poverty rates in the U.S. have reached their highest levels in 50 years. The great wealth disparities in the U.S. are at least partly responsible for the Occupy Wall Street Movement, and perhaps even the Tea Party. Because of these significant social developments, the Drake Constitutional Law Center hosted the symposium “Constitutionalism and the Poor” in April, 2012. This brief Foreword makes two arguments for why the U.S. Supreme Court could eventually show greater concern about laws that burden the poor. First, many scholars agree that the U.S. Supreme Court has used more than three levels of scrutiny in constitutional cases. For example, there is lenient rationality review and rationality review with a bite. There is the strict scrutiny of Parents Involved and the lesser strict scrutiny of Grutter. These stealth alternative levels of scrutiny certainly allow the Court to go beyond lenient rationality in cases where important interests of the poor are at stake.

Second, the U.S. Supreme Court has wrongly assumed that it lacks the judicial competence to adjudicate socio-economic rights related matters. For example, the South African Constitutional Court has enforced constitutional socio-economic rights provisions with some success. Though the South African and U.S. Constitutions are very different, the South African cases show how a judiciary can balance these interests against separation of powers concerns. The Foreword also provides short summaries of the Symposium papers that will appear in an accompanying issue of the Drake Law Review. The paper authors include Professor Peter Edelman of Georgetown, Mr. Ilya Shapiro, Esq. of the CATO Institute, Professor Julie Nice of the University of San Francisco, Professor Frank Michelman of Harvard, Professor john powell of the University of California at Berkeley, and the Honorable Mark Cady, Chief Justice of the Iowa Supreme Court.

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Federalism and Democracy: A Defence of Federalism-Based Judicial Review

Leonid Sirota 

New York University (NYU) - JSD Program

October 15, 2012

Not only critics of judicial review of legislation, but sometimes even those who support its use to protect the rights of individuals or minorities are critical of judicial review on federalism grounds. I want to argue that they are mistaken. When it is used to protect a federal division of powers, judicial review of legislation is not only counter-majoritarian, but also pro-majoritarian.

In a federation, democracy happens at more than one level, a democratic federal legislature and democratic state legislatures. Thus, insisting that issues of federalism must be resolved democratically obscures the fact that, in a federation, there are different decision-makers with different constituencies and democratic claims of equal strength. To allow one of these decision-makers to impose its understanding of federalism on the other is no less undemocratic than to subject it to judicial review.

“Political safeguards of federalism” cannot resolve this problem, because they are either ineffective at giving states a voice in federal legislation or, if effective, they allow states to override the views of the national majority. Judicial review is the best practical solution for settling disputes about federalism. From a democratic standpoint, it is not a mere loss, but an important investment.
Number of Pages in PDF File: 30
Keywords: federalism, judicial review, constitutional law, political safeguards

Evolutionary Interpretation and the Intention of the Parties

Eirik Bjorge 

University of Oxford - Corpus Christi College; University of Oslo

October 10, 2012

University of Oslo Faculty of Law Research Paper No. 2012-33 

While many authors have seen, and continue to see, evolutionary treaty interpretation as something that by definition goes against the grain of the intentions of the parties to the treaty, this working paper puts the opposite point of view. It is argued that evolutionary interpretation, whether conducted by the European Court of Human Rights or by the International Court of Justice, is nothing if not built upon the common will of the parties. Evolutionary interpretation, in itself nothing else than the name we have given to a particular type of interpretive result, must in common with all other interpretive results in the law of treaties be the outcome of a process aimed at establishing as fully an fairly the intention of the parties to the treaty.

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martedì 9 ottobre 2012

Invisible Lawmaking

Barak Orbach 

University of Arizona

October 3, 2012

University of Chicago Law Review, 2013
Arizona Legal Studies Discussion Paper No. 12-32 

Private lawmaking is an ordinary rent-seeking activity of interest groups: the pursuit of self-interest through regulation. Motivated private lawmakers take advantage of imperfections in the marketplace of ideas and utilize such imperfections to obscure their visibility. The U.S. Supreme Court’s “marketplace of ideas” theory denies market imperfections and presumes prefect competition in the marketplace. This presumption rests on the Court’s firm premise that the pursuit of self-interest necessarily serves the public. Resting on this unqualified confidence in the pursuit in self-interest, in Citizens United, the Supreme Court has empowered interest groups, strengthening their influence over public lawmakers. This Essay presents how the Supreme Court’s confidence in the inherent value of the pursuit of self-interest has weakened democratic institutions, arming interest groups with effective means to draft the law of the land, while circumventing the public discourse and shortcutting open debates.
Number of Pages in PDF File: 12
Keywords: Private Lawmaking, Rent Seeking, Citizens United, Marketplace of Ideas, Regulation

Herbert Hart in Post-Modern International Legal Scholarship

Jean D'Aspremont 

University of Amsterdam

October 2, 2012

Jean d’Aspremont, Jörg Kammerhofer (eds), International Legal Positivism in a Post-Modern World (Cambridge: Cambridge University Press 2013) (Forthcoming) 

This chapter argues that the most relevant of Hart’s insights for contemporary international legal scholarship are to be found in his reductionism. It contends that the Hartian concept of law is germane to the extent that it helps international legal scholars to restrict international legal positivism to a mechanism for determining the mode of existence of norms; that is, their validity. Hart’s positivism is reductionist in that it confines legal positivism to a theory about the determination of the existence of law by virtue of a theory of sources, i.e. a theory of the ascertainment of rules. In that sense, Hart’s theory renders legal positivism a tool of limited scope which does not lay down a grand theory of law, and which is certainly not a content-determining mechanism.

According to this view, Hart’s Concept of Law is alien to the search for legal certainty and immanent truth as regards the content of law. This is why it is argued here that, from a Hartian perspective, international legal positivism is not about determining the right content of norms and the right adjudicative truth. Instead, international legal positivism should be confined to a thesis about the validity-condition of legal norms.

The Hart-inspired international legal positivism which is put forward here is premised on the idea that international legal positivism is deficient when it comes to deciphering and unraveling the other dimensions of international law such as the creation of subjects, the description of the multi-dimensional phenomenon of law-making or the compliance pull of international legal rules to name only a few. This understanding of international legal positivism simultaneously brings with it a division of tasks among various approaches to international law within international legal scholarship, each of them recognised as having distinct merits that can be mutually reinforcing.
Number of Pages in PDF File: 27
Keywords: international law, international legal theory, Hart, Kelsen, Salmond, legal positivism, critical legal studies, postmodernism, reductionism, formalism, social thesis, source thesis, Article 38, law-ascertainment, social practice, Wittgenstein, cognitive legal positivism, indeterminacy

Financial Liability of the EU for Violations of WTO Law: A Legislative Proposal Benefiting 'Innocent Bystanders'

Marco Bronckers 

Leiden University - Leiden Law School

Sophie Goelen 

affiliation not provided to SSRN

June 20, 2012

39(4) Legal issues of Economic Integration 399-418 (2012) 

In this paper we discuss whether the EU may be held liable by individuals for damages they suffer due to a violation of world trade organization (WTO) law by the EU.We focus on European companies whose exports to a third country are suddenly blocked as a result of WTO-authorized retaliation by that country against the EU, for as long as the EU fails to adjust those measures which have been found to infringe WTO law. Typically, the affected European companies are in no way involved in the trade dispute between the EU and a third country, as the dispute normally relates to a completely different sector.The problem that arises here has also been referred to as ‘collateral damage’, or damage to ‘innocent bystanders’. In view of disappointing developments in the European Courts' case law, we propose a legislative solution to compensate innocent bystanders.
Number of Pages in PDF File: 16
Keywords: WTO violations, financial compensation to victims of retaliation, WTO dispute settlement, EU case law on no-fault liability, égalité devant les charges publics, financial compensation and WTO subsidy law

Proscription of Organisations in UK Counter-Terrorism Law

Sofia Marques da Silva 

King's College London - School of Law

Cian C. Murphy 

King's College London - School of Law

October 8, 2012

Legal Aspects of EU Sanctions, Cameron, ed, Intersentia, 2012 

The UK has a history of proscribing organisations in the name of national security – with Irish Republican organisations the most well known example. The Terrorism Act 2000 provided new powers of proscription. Since the attacks on September 11 2001 the focus of proscription has been on organisations related to Islamist extremism. This paper will examine the legal framework for the proscription of organisations in the UK and how it has been used. It will consider the process by which proscription is imposed and the means by which it can be challenged. The most common use of proscription today is against organisations that, though dangerous, do not necessarily pose a threat to UK national security. The paper argues that proscription can enshrine in criminal law foreign policy choices of the UK government so as to criminalise support for causes whose illegitimacy is, at the very least, open to contest.
Number of Pages in PDF File: 21
Keywords: counter-terrorism, proscription, September 11 2001, Terrorism Act 2000

Larouche on Global Legal Scholarship

A Vision of Global Legal Scholarship

Pierre Larouche 

Tilburg Law and Economics Center (TILEC); College of Europe - Bruges; Tilburg University - Tilburg Law School; Center on Regulation in Europe (CERRE)

October 8, 2012

TILEC Discussion Paper No. 2012-034 

Global legal scholarship should aim to be both post-national and inter-disciplinary. By post-national, we imply that it should rise above national legal systems and cover a more abstract corpus of knowledge about law, of which national legal systems would be an application. By inter-disciplinary, we mean that legal scholarship is enhanced by a deeper understanding of other sciences, without merging with any of them. This places global legal scholarship in a ‘sweet spot’, between traditional national legal scholarship and other social sciences. In order to retain its strong link with reality, global legal scholarship should also espouse empirical research methods.
Number of Pages in PDF File: 11
Keywords: legal scholarship, global law, comparative law, inter-disciplinarity, empirical

domenica 7 ottobre 2012

Compulsory Licensing of Patents: The Bayer/Natco Case

Enrico Bonadio  
City University London - The City Law School ; City University London 

(2012) European Intellectual Property Review (Issue 10), pp. 719-728 

On 9th March 2012 the Indian Controller of Patents granted the first compulsory licence in India. Indian generics producer Natco Pharma Ltd. has been granted the right to produce and sell in India Bayer’s patented medicine “Sorafenib”, which is useful for treating advanced stage liver and kidney cancer. After a brief introduction on compulsory licenses under the TRIPS Agreement and the Paris Convention, the author verifies whether the decision of the Controller of Patents satisfies the conditions set forth by the these international treaties in relation to compulsory licenses. He concludes inter alia that the ruling might be in violation of the non discrimination principle enshrined in Article 27(1) TRIPS. General comments are also made about the role of compulsory licensing in guaranteeing the availability of patented products to a wide range of consumers and in general the transfer and dissemination of the associated technology.

Russo on globalization and crossborder cooperation

Globalization and Cross-Border Cooperation in EU Law: A Transnational Research Agenda

Anna Margherita Russo  
Centro de Estudios Políticos y Constitucionales (CEPC) 
October 6, 2012

Perspectives on Federalism, Vol. 4, Issue 3, 2012, E-1-23, 2012 

This paper aims to analyse a specific dimension of the progressive transformation of the territorial/nation-state law by using the particular lens of cross-border cooperation as regulated under EU law.
In order to do so, I have structured the article into two parts: the first part recalls the main features of the so-called transnational law (polycentrism, non-exclusivity of state actors in the law-making process and in the implementation of legal rules, openness, emergence of hybrid legal phenomena which do not belong - exclusively at least - to the domain of hard or soft law), while the second part analyses the legal framework of cross-border cooperation, trying to locate in this ambit those characteristics of transnational law identified in the first part.

Keywords: cross-border cooperation, globalization, transnational law, European Union, openness, frontier

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