Murphy on Judicial Dialogue

C.Murphy, "Human Rights Law and the Challenges of Explicit Judicial Dialogue", Jean Monnet Working paper, http://centers.law.nyu.edu/jeanmonnet/papers/12/documents/JMWP10Murphy.pdf

Chapter VIII: Between the Margin of Appreciation and Neutrality: The Lautsi Case and the New Equilibria of the Protection of Freedom of Religion or Belief in Europe

Pasquale Annicchino 

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)
2012

R. Mazzola (a cura di), Diritto e Religione in Europa. Rapporto Sulla Giurisprudenza della Corte Euroepa dei Diritti Dell'Uomo in Materia di Liberta' Religiosa, Il Mulino, pp. 179-193, 2012 
Abstract:      
Book chapter on the role of the doctrine of margin of appreciation and the principle of neutrality in the case law of the European Court of Human Rights on freedom of religion or belief after the Lautsi case.

Note: Downloadable document is in Italian.

Number of Pages in PDF File: 12

Keywords: Margin of appreciation, European Court of Human Rights, Religious Freedom

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2202809

Legal Pluralism and Normative Transfer

Jennifer Hendry 

School of Law, University of Leeds; European University Institute
October 1, 2012

Order from Transfer: Projects and Problems of Comparative Constitutional Studies, G. Frankenberg (ed.) Edward Elgar (2013) (Forthcoming) 
Abstract:      
Legal norms have always crossed borders, be these national, cultural or functional, but recent legal and social changes have made the study of the circumstances under which law and norms are transferred from one context or locus to another more important than ever before. Post-colonial, supranational and global processes have not only drawn attention to this legal 'movement' or transfer but have also raised challenges to conventional conceptions of legal spaces and borders, and these feature alongside legal pluralism at the forefront of contemporary comparative legal studies debates. These two concepts - transfer and pluralism - find themselves inextricably linked by their conceptual relevance to different legal orders and to issues of conflict, contestation and interaction in terms of law, society, culture and legal culture, but are rarely (if ever) conceptualized with relation to each other. This paper submits that framing normative transfer in terms of legal pluralism adds another dimension to each concept, and attempts to illustrate this with reference to the example of nation state-internal normative pluralism in post-colonial societies with indigenous communities.

Number of Pages in PDF File: 23

Keywords: legal pluralism, normativity, state-internal, post-colonial, indigenous peoples, comparative law, comparative legal studies, boundaries, borders, translation, transfer

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2200117

Private Law Principles, Pluralism and Perfectionism

Martijn W. Hesselink 

University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
November 8, 2012

Centre for the Study of European Contract Law Working Paper Series No. 2013-02
Amsterdam Law School Research Paper No. 2013-06 
Abstract:      
This paper discusses the legitimacy of general principles of private law as they have been formulated recently by the Court of Justice of the European Union and proposed by the European Commission. It addresses challenges from different strands in political theory including liberal perfectionism, political liberalism and Habermasian discourse theory. There are four specific lessons to be learned from these theories. First, the quest should not be for very general and abstract principles with a very broad scope, but rather for principles of an intermediate level of abstraction and a limited scope, which could explain and bring coherence to a set of rules or a legal doctrine, but not to the whole law of contract. Private law principles which are too general and sweeping would risk to neglect the need for internal diversification within private law. Secondly, these private law principles should be situated on the non-constitutional level of ordinary private law, subject to the constitution (including its horizontal effect) which in turn must be compatible, in order to be legitimate, with the political principles of justice that the EU polity has given itself. Thirdly, the CJEU, although an institution that is not in itself a less legitimate lawmaker than the legislator, also when it comes to private law principles, has a strong duty to explain itself and to provide good reasons for adopting general principles of civil law and for choosing certain principles, especially if these principles happen to be controversial, either from a comparative law point of view or along any of the other axes along which European citizens and European Member States may differ. Finally, there is no legitimate place for strong perfectionism in the deliberation on fundamental European private law principles; any private law perfectionism should be either local (in specific doctrines like unfair exploitation) or thin (limited to values like rationality). However, as long as we remain cautious is all these respects, the quest for general private law principles is perfectly legitimate. There is no contradiction per se in seeking to find general private law principles in a pluralist world.

Number of Pages in PDF File: 23

Keywords: principles, pluralism, perfectionism, contract theory, legitimacy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2205001

Proportionality and Justification

Moshe Cohen-Eliya 

Academic Center of Law and Business

Iddo Porat 

Academic Center of Law and Business
January 23, 2013

Aharon Barak, Proportionality: Constitutional Rights and their Limitations (2012, Cambridge University Press)
University of Toronto Law Journal (2013) 
Abstract:      
Proportionality: Constitutional Rights and their Limitations, written by former President of the Israeli Supreme Court, Justice Aharon Barak, is the most comprehensive and authoritative account of the vast literature on proportionality, and would be indispensable to anyone interested in the field. Barak evaluates in his book several justifications for the use of proportionality and several defenses of proportionality against its critics. In this review article we concentrate on one such defense, which has gained prominence in recent years and on which we have written also in the past: viewing proportionality as a structured and analytically coherent set of tests requiring the government to provide reasons and justifications for all of its actions.

We identify several prominent recent writers and Barak among them that represent a shift in the literature on proportionality towards a justification-based approach. We assess four strong rationales for the duty of the government to give justifications and provide reasons for its actions: it shows an attitude of respect towards the citizens affected by governmental actions; it is essential to the legitimacy of governmental authority; it facilitates democratic deliberation and participation, and it furthers governmental accountability and trust between the citizens and the government.

However, we claim, those rationales do not necessarily support proportionality. Indeed, those writers who support the justification-based approach disregard the fact that proportionality is not the only method to promote justification nor even the best one. We argue that a more categorical approach, such as “exclusionary reasons”, follows just as much from the ideas underlying justification. Therefore, in order to be justified, proportionality needs another anchor than the justification-based approach, and attempts to “save” proportionality by relying on the idea of justification are problematic.

Number of Pages in PDF File: 22

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2205702

The New EU Legal History: What's New, What's Missing?

Mark A. Pollack 

Temple University - Department of Political Science; Temple University - James E. Beasley School of Law
January 24, 2013

American University International Law Review, 2013
Temple University Legal Studies Research Paper 
Abstract:      
For several decades, the history of the European Court of Justice has been studied primarily by legal scholars and political scientists, but not by historians, who focused primarily on the political and economic history of the European Union (EU). That anomaly is starting to be rectified, with the emergence of what I call the New EU Legal History. In this paper, I review the arguments and the findings of this new historical research, asking what is new, what value-added insights have emerged about the early Court vis-à-vis existing political science and legal scholarship, as well as what is still missing, namely what important questions remain to be addressed by EU legal historians.

The paper is organized in three parts. First, I provide a brief summary of some of the primary themes of recent political science scholarship on the ECJ, identifying four primary questions and debates from that literature: the nature and preferences of the Court, the independence of the Court vis-à-vis the member states, the Court’s relationship of the Court to national courts, and the “constitutionalization” of the treaties.

Second, I look to the New EU Legal History, asking what genuinely new insights, if any, it has generated with respect to each of these four questions. I argue that EU legal historians have indeed challenged some widely held assumptions in the political science literature, and also help to adjudicate among long-standing, and competing, theories of judicial politics and European integration. In terms of the nature of the Court and its preferences, historians have challenged the complacent assumptions about the unity and the pro-integration preferences of the Court, showing us instead an early Court that was divided in its views and whose judges were far from consistently “constitutional” in their preferences. With respect to the independence of the Court, the early Court was willing to rule against the expressed will of powerful member states, counter to the predictions of a simple intergovernmentalist model, yet these same judges were more cautious, and more acutely aware of the potential for backlash, than a strong “trusteeship” image might imply. In terms of the Court’s relations with national courts, historical studies have reinforced the findings of recent political science scholarship, which finds numerous examples of consistent, sustained national-court resistance to the ECJ, whose reception in the member states’ legal orders was and remains an uneven “patchwork.” Finally, all of these findings taken together yield a picture of an ECJ whose constitutionalization of the treaties was indeed an act of agency, but a more contingent, and more contested, act than the heroic accounts of this period have suggested until now.

The third and final section identifies a series of potentially interesting and important questions that remain underexplored by legal historians, and issue a plea for historians to engage these questions as well.

Number of Pages in PDF File: 45

Keywords: European Court of Justice, European Union, legal integration, legal history, judicial independence, international law, international courts

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2207170

Necessity Killed the Gatt - Art XX Gatt and the Misleading Rhetoric about ‘Weighing and Balancing’

Filippo Fontanelli 

University of Surrey
November 30, 2012

European Journal of Legal Studies, Volume 5, Issue 2 (Autumn/Winter 2012/13), pp 36-56 
Abstract:      
Art XX GATT, listing the policy grounds available to WTO Members that wish to deviate from their GATT obligations, makes some of them conditional on a requirement of necessity in relation to the pursued interest. In their reports, Panels and the AB have developed the analysis of this element in two separate but interlaced tests: one whereby they allegedly perform an exercise of ‘weighing and balancing’ of the interests involved (a value-judgment), the other ascertaining the trade-restrictiveness of the measures challenged (an optimization analysis). It is submitted that an appraisal of the case-law demonstrates that this distinction is artificial, and most importantly, that no real balancing is ever performed - or in any event, relied on - to determine the outcome of a dispute (Claim 1). However, a diffuse trend of ‘strict proportionality’ is discernible in the case-law, not so much within the ‘weigh and balance’ analysis, but within the trade-restrictiveness test. The latter, therefore, is arguably less value-neutral than the quasi-judicial bodies would claim it to be, and then WTO Members tend to understand, when construing the necessity requirement (Claim 2).

Number of Pages in PDF File: 22

Keywords: WTO, Art. XX GATT, necessity, proportionality, deference

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2207206

The Lisbon Treaty and the Commission's Appointment

Wim Van Gestel 

KU Leuven. Faculty of Business and Economics (FBE)
November 13, 2012

KU Leuven - Faculty of Business and Economics Research Paper No. OR1223 
Abstract:      
This paper looks at EU trade policy and more speci…fically at the negotiating mandate the Council must grant the Commission to start trade negotiations. The negotiating mandate is a set of directives that impose limits to the proposals the Commission can make. As such the mandate is legally binding and defendable in a court of justice. However, authors such as Kerremans (2004b) and Damro (2007) also point out a different way of looking at the mandate by arguing that it sets out the maximum concessions the Council is willing to make during trade talks and that the mandate can thus be considered a signaling device. In this paper I analyze this proposed second role of the negotiating mandate in EU trade policy making by decoupling the two perspectives on the negotiating mandate.

The results of the model show that when individual Council members can communicate with the Commission, there exists a signaling equilibrium in which the Commission complies with the mandate.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2208367

Foley on counter-terrorism

This is the last book published by my colleague Frank Foley (CEPC, Madrid). It also includes a comparative analysis of the British and French counter-terrorism legislation

From CUP's website:

Though Britain and France have faced a similar threat from Islamist terrorism in the years following September 11 2001, they have often responded in different ways to the challenges it posed. This groundbreaking work offers the first in-depth comparative analysis of counterterrorist policies and operations in these two leading liberal democracies. Challenging the widely held view that the nature of a state's counterterrorist policies depends on the threat it is facing, Foley suggests that such an argument fails to explain why France has mounted more invasive police and intelligence operations against Islamist terrorism than Britain and created a more draconian anti-terrorist legal regime. Drawing on institutional and constructivist theories, he develops a novel theoretical framework that puts counterterrorism in its organisational, institutional and broader societal context. With particular appeal to students and specialists of International Relations and Security Studies, this book will engage readers in the central debates surrounding anti-terrorist policy.


For further information: http://www.cambridge.org/es/knowledge/isbn/item7065061/CounteringTerrorisminBritainandFrance/?site_locale=es_ES

Government Ethics: The Strange Italian 'Conlict of Interests'

Bernardo Giorgio Mattarella 

University of Siena
November 15, 2012

Italian Journal of Public Law, No. 2, pp. 360-375, 2012 
Abstract:      
This paper is divided into three parts. Each part is devoted to four issues, which are always the same: the definition of conflict of interests; the scope of its regulation; the remedies for such situations; and the control and punishment mechanisms. In the first part of the paper, these issues are addressed in general terms. In the second part, they are considered in a comparative perspective. The third part focuses on the Italian legislation and particularly on the cabinet members. The relative statute contains a very unusual definition of conflict of interests. It uses only one of the possible remedies, the disqualification, but under its provisions establishing the grounds for disqualification and proving a violation is practically impossible. The main provision of the statute, in fact, is a fake one.

Number of Pages in PDF File: 16

Keywords: Government Ethics, Conflict of Interest

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2199877

Administrative Law in Italy: An Historical Sketch

Bernardo Giorgio Mattarella 

University of Siena
November 15, 2010

Rivista Trimestrale di Diritto Pubblico, Vol. 4, 2010 
Abstract:      
The first three parts of the essay describe the evolution of Italian administrative law, from the foundation of the unitary state, in the second half of the 19th century, to the present time. The fourth part is devoted to the analysis of some general features of administrative law today, especially focusing on its “criterion,” i.e. its borders and its distinction from other provinces of law. In the 19th century both the unitary State and the administrative law were born and developed in Italy. The features of the latter were strongly influenced by the unification process and by political events. In the first half of the 20th century administrative law underwent major developments involving the range of administrative tasks, the size of administrations, their organization and their relations with citizens. Administrative law was still affected by political developments and displayed its authoritarian facet. In the second half of the century, many trends which had begun in the former period continued and some of the problems which had arisen in the first half of the century grew more serious. The institutional context, however, was very different. The principles of the democratic Constitution gradually changed the shape of administrative law, which came to display its liberal facet. At the beginning of the 21st century, the problems of delimiting administrative law may be traced to three main profiles: that of the distinction from private law; that of the correspondence between administrative law and administrative justice and, therefore, of the apportioning of jurisdiction; that of placement within the sphere of public law.

Number of Pages in PDF File: 46

Keywords: Italian administrative law, History of administrative law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2199888

Asymmetric Devolution and Ombudsman Reform in England

Mark Elliott 

University of Cambridge - Faculty of Law
January 11, 2006

Abstract:      
Examines the case for reform of public sector ombudsmen in England, arguing that the Scottish and Welsh model of an integrated ombudsman service should be adopted but that the adoption of a such a system in England would be complicated by the nature of the devolution settlement and, in particular, England's curious place within in.

Number of Pages in PDF File: 42

Keywords: devolution, ombudsmen, public sector ombudsmen, constitutional law, United Kingdom, England, Scotland, administrative law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2199362

The Constitutional Credentials of State Constitutions

Cheryl Saunders 

Melbourne Law School 
January 9, 2013

Rutgers Law Journal Vol. 42, No. 4
U of Melbourne Legal Studies Research Paper No. 621 
Abstract:      
This article examines the jurisprudential character of sub-national constitutions in federal-type systems. Many, although not all, of the constituent units of federated states have constitutions of their own. Constitutions of this kind, however, do not neatly fit accepted theoretical accounts of the nature of Constitutions, in at least two ways. First, the constitutions of constituent units are not superior law, but typically are subject to the federal constitution and sometimes also to federal legislation. Secondly, there is a degree of ambiguity about the source of constituent authority for the constitutions of constituent units, centred on the identity of the relevant ‘people’. This apparent tension between theory and practice derives from the intersection of two contemporary debates: on federalism, including comparative federalism and one the nature and practice of constituent power. The article illustrates the tension in play in the context of one federation, Australia, with particular reference to Australian State practices in making and amending constitutions and the continuing legal uncertainty about the scope and depth of the power to entrench State constitutions. In this particular case it argues that Australian constitutional law and practice would be enhanced by a heightened consciousness of the significance of State constitutional instruments. More generally, however, it reaches two sets of conclusions. First, the extent of the theoretical difficulty varies between federations in different constitutional traditions. Secondly, the tension is diminished and may disappear over time by the increasing flexibility of constitutional conceptions in conditions of constitutional pluralism.

Number of Pages in PDF File: 42

Keywords: comparative constitutional law, comparative federalism, constituent power, Australian state constitutions, entrenchment

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2198646

General Principles and Comparative Law

Jaye Ellis 

McGill University - Faculty of Law 
2011

European Journal of International Law, Vol. 22, No. 4, 2011 
Abstract:      
This article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. The currently accepted definition of general principles and methodology for identifying such principles are critiqued. The criterion of the representativeness of the major families of legal systems, to which courts and tribunals tend to pay lip service rather than applying rigorously, is meant to anchor general principles in state consent, but is not a sound technique either for identifying principles of relevance to international law or for preventing judges from referring only to the legal systems they know best. Furthermore, the emphasis on extracting the essence of rules results in leaving behind most of what is interesting and useful in what judges may have learned by studying municipal legal systems. Comparative scholarship is an obvious, rich, and strangely neglected source of guidance for international judges who wish to draw insights from legal systems outside international law.

Number of Pages in PDF File: 23

Keywords: public international law, general principles, comparative law, sources doctrine

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2196949

Democracy and the Western Legal Tradition

Mauro Bussani 

University of Trieste School of Law

Ugo Mattei 

University of California Hastings College of the Law 
April 1, 2012

Mauro Bussani and Ugo Mattei (Eds.), The Cambridge Companion to Comparative Law, Cup, Cambridge, 2012, 388-396 
Abstract:      
The availability of democracy is usually presented as a pre-requisite of any evaluation – be it political, economic or legal – of any country, and as an imperative to pursue (with or without Western help) for all societies that do not enjoy it. Yet, discussions about non-democratic systems, and the Western aspiration to transform them, often fail to take into account – as they actually should – the basic elements of Western democratic societies, the very fabric with which democracy is woven. The paper adopts a comparative law approach to the issue. It takes into account the historical, technical, and cultural frameworks underlying Western democracies, and unveils the limits of the arguments usually employed by both the detractors of democracy itself, and those who believe that democracy is an easy-to-export commodity.

Number of Pages in PDF File: 10

Keywords: Law of democracy, Western legal tradition, comparative law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2199141

Immigration Preemption after United States v. Arizona

Kit Johnson 

University of Oklahoma - College of Law
November 7, 2012

University of Pennsylvania Law Review Online, Vol. 161, p. 100, 2012 
Abstract:      
Professors Kit Johnson and Peter Spiro debate the role states should play in immigration enforcement after the Supreme Court's decision in Arizona v. United States.

Number of Pages in PDF File: 5

Keywords: Immigration, Preemption, Arizona

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2199084

European Enlargement and the Economic Crisis: Impact and Lasting Effects

Rebecca Zahn 

University of Stirling - School of Law
January 7, 2013

ETUI Working Paper 2013.01 
Abstract:      
This working paper by Rebecca Zahn of the University of Stirling looks at the effects of the economic crisis on the enlarged European Union and the European Social Model.

Starting from an analysis of the well-known Viking and Laval decisions of the European Court of Justice from 2007 and 2008, the author of the report sees increasing tensions between EU member states over “social dumping”, austerity packages and growing inequality between workers.

This development results in citizens questioning the benefits of further European integration and threatens the very existence of the European social model.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2198879

New blog on European Courts

I recently received an email from Marc de Werd (Justice Amsterdam Court of Appeal), here you can find the message:

"Dear All,

Hope you're all doing fine. I'm misusing now you're e-mail addresses to inform you about the EU and ECHR law blog that I have started. It is still under construction, and I am still experimenting with it. 

It is still under construction, and I am still experimenting with it. 

What might be interesting for you to know  is that the Amsterdam Court of Appeal publishes a monthly newsletter with all recent (last month judgments from the CJEU and the ECHR. It’s title is ‘Rechtspraak Europa’ (that means  ‘case law from Europe’).  It started as a service to Dutch court personnel (judges and staff) but is now free available on the internet, for students, lawyers, prosecutors  and everyone else interested in EU law. The newsletter is made by 5 of our law clerks and me. 

It’s not an academic journal but rather a plain overview of jurisprudence, aimed at getting grip on the flood of case law coming down from Strasbourg and Luxembourg every day.  Especially for Dutch judges and law practitioners the newsletter has proved to be quite useful.

During my last months visit to EUI - that I very much enjoyed - I realised that the time has come (for judges and lawyers) to start exchanging ideas and experiences on EU and ECHR topics in a much more 'European' way, i.e. by cooperating. 

Therefore I made - as an experiment - an edition in English of our newsletter. We call it ‘European Courts’ and we like to find out whether (or not) in other countries such an overview might be useful as well. In the next few months we will publish every month an issue of 'European Courts'. 

Please have a look and send it around for comments. I would be very grateful if you could give me some feed back. And please be honest!

Of course it would be wonderful if in future this initiative could lead to some kind of European cooperation (maybe with EUI?) between national judicial organizations and law faculties. Because I am pretty sure that a lack of EU and ECHR knowledge is not only a problem for the Dutch judges.

And of course you are more than welcome to contribute to the weblog of European Courts!

Click here: http://europeancourts.blogspot.nl/

Wishing you all the best for 2013.

Marc de Werd

Justice Amsterdam Court of Appeal"

Sustainability as a Legal Principle for the Exercise of Public Authority:Call for papers: Environmental, Financial and Demographic Aspects

Call for Papers

Sustainability as a Legal Principle for the Exercise of Public Authority: Environmental, Financial and Demographic Aspects

Special Workshop IVR World Congress Belo Horizonte (Brazil), 21-27 July 2013

The focus of this workshop is on the emerging principle of environmental, financial and demographic sustainability in constitutional, administrative, European and international law. The purpose of the workshop is to examine whether conceptualisations or concrete legal solutions developed at one or several points in a three-times-three matrix (three issues: environmental, financial and demographic challenges; three legal orders/levels: domestic, European and international law) can cross-fertilise each other. We would especially welcome contributions on the following questions:

• the intellectual origins of the principle of sustainability;
• the journey of the principle of environmental sustainability from international law to constitutional law;
• how to assess environmental sustainability given the uncertainty of scientific knowledge?
• the legal, economic and political meaning of financial sustainability: what exactly is being or should be codified as a legal principle?
• debt brake vs. democracy: how does the move from discretion to rules in fiscal policy the role of parliaments?
• different types of debt brakes: what do we know about their effectiveness?
• financial sustainability forced from above: a threat to national sovereignty, or a measure to safeguard human rights?
• the meaning of demographic sustainability: is there a common core, despite the differences between high and low fertility countries?

• is demographic sustainability contradicting to some traditional constitutional taboos (cf. family suffrage, human cloning)?
• is sustainability as a constitutional principle possible at all without a similar principle in international (and/or European) law?

Abstracts should be submitted via the congress website before 28 February 2012:

http://www.ivr2013.org/hotsite/english/.

Organisers: Matthias Goldmann (MPI, Heidelberg, goldmann@mpil.de) and András Jakab (MPI, Heidelberg, jakabandr@gmail.com).

Participants must register for the conference. For further details see the conference website:www.ivr2013.org. 

The Logic of the Law and the Essence of Economics: Reflections on 40 Years in the Wilderness

Neil K. Komesar 

University of Wisconsin - Madison
January 3, 2013

Wisconsin Law Review, Forthcoming
Univ. of Wisconsin Legal Studies Research Paper No. 1217 
Abstract:      
In this article, I explore the role of comparative institutional analysis in understanding and reforming both legal analysis and economic analysis. For me, understanding both legal analysis and economic analysis means focusing on decision-making institutions and, in turn, their behavior and the choice between them. These must be the building blocks of any approach to law and public policy. If institutional choice is the central theme of both legal analysis and economic analysis, it should follow that the central focus of both legal analysis and economic analysis would be institutional comparison weighing the relative merits of the relevant decision-making processes. In other words, the core of both legal analysis and economic analysis at least the economic analysis of law and public policy should be comparative institutional analysis. But it isn't. This failure is far more obvious in economic analysis than it is in legal analysis primarily because it is difficult to know what legal analysis is. I can quite comfortably show that the study of institutional behavior defines economic analysis in general and that institutional choice defines the economic analysis of law and public policy. Under these circumstances, the absence of comparative institutional analysis is a glaring error. But legal analysis is difficult to pin down. What we teach as legal analysis is really just a negative lesson that the law is not simply an internally closed system of logic based on the words of cases and statutes combined with unarticulated or poorly articulated ad hoc intuitions about what law may actually be about. It has been and remains my objective to use comparative institutional analysis to provide an analytical framework for legal analysis. Such a framework should provide a way to integrate, test and understand the various views on law. It should allow us to establish what we know and what we need to know. For law teaching, it should provide the key to the meaning of the terms and thresholds that seem to define law, but which themselves are ill-defined. The resulting framework should be able to operate across all areas of law for both descriptive (positive) analysis and prescriptive (normative) analysis. It should work for practitioners, judges, policymakers and scholars. In the first part of this paper, I explore the role of institutional choice and comparative institutional analysis in defining the basic intuitions of law. I explore what comparative institutional analysis has to say about several important legal issues including defining the thresholds of equal protection fundamental rights and suspect classifications, the concept of property, the thresholds for class actions and the thresholds of judicial review of contracts under doctrines like unconscionability and of corporate decision-making under doctrines like the business judgement rule. Using this broad range of applications shows how comparative institutional analysis reveals the parallels across areas of law often considered unconnected. There will be other legal applications in the paper including an examination of tort law and tort reform. But these other applications will await the second part of the paper where I will explore both the role of economic analysis in understanding and constructing comparative institutional analysis and the role of institutional choice and comparative institutional analysis in unlocking the potential of economics for the analysis of law and public policy. Here I will consider the role and limits of resource allocation efficiency, the intellectual costs of single institutional analysis and the central place of the dynamics of participation. I will close by drawing implications for the reform of legal education, legal scholarship and the economic analysis of law and public policy. This paper is my contribution to a Symposium, entitled "30 Years of Comparative Institutional Analysis: A Celebration of Neil Komesar," held at the University of Wisconsin in October, 2012. Other contributors include Andy Coan, Dan Cole, Bill Eskridge, Shubha Ghosh, Michele Goodwin, Miguel Maduro, Victoria Nourse, Paul Olszowka, Ed Rubin, Greg Shaffer, David Skeel, Matthew Stephenson, Peter Swire and Wendy Wagner. The Symposium will be published in the Wisconsin Law Review.

Number of Pages in PDF File: 57

Keywords: decision-making, constitutional law, judicial review, rights, institutional choice, comparative institutional analysis, constitutional theory, dynamics of participation, participation, dynamics of litigation, European Union, EU, political malfunction, judicial resources, fundamental rights, suspect

Full text availablee at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2195963

Citizenship and Dignity

Jeremy Waldron 

New York University (NYU) - School of Law
January 3, 2013

Abstract:      
Theories of dignity have to navigate between two conceptions: the egalitarian idea of human dignity and the old idea of dignitas, connected with hierarchy, rank, and office. One possible way of bridging the gap between the two is to talk of the dignity of the citizen. In modern republics and democracies, the dignity of the citizen extends to a large sector of the population and connotes something about the general quality of the relation between the government and the governed. This chapter first explores Immanuel Kant’s account of the dignity of the citizen, and then it pursues the implications of the dignity of the citizen for modern society and modern theories of human dignity. Though the dignity of the citizen and human dignity are not the same concept, they are congruent in many respects and the former casts considerable light on the latter — in particular on the connection between dignity and responsibility and dignity and transparency in social and political relations.

Number of Pages in PDF File: 24

Keywords: citizenship, contractarianism, dignity, human dignity, Kant, responsibilities, transparency

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2196079