sabato 30 marzo 2013

Summer School "Parliamentary Democracy in Europe" LUISS, Rome

Summer School "Parliamentary Democracy in Europe"

(Jean Monnet Module n. 529931 –LLP -2012 – IT – AJM – MO)

2nd Edition

“The European Parliament: Organisation and Functioning

LUISS School of Government

Rome, 8-19 July 2013

Applications by 6 May 2013

In particular after the Treaty of Lisbon and the recent developments that led to the reform of the European economic governance, the position of the European Parliament, between empowerment and ‘transformation’ of its role, requires to be studied in depth aiming to assess its interactions with citizens and with European and national institutions.
This summer school untangles these issues and provides its participants with a map of the current state of the European Union democracy, under the perspective of the European Parliament, of its election, organization, decision-making processes, inter-institutional relations, contribution to the protection of fundamental rights in the EU and, in the end, to the integration process.
Hence, students will be confronted with the multifaceted dimensions of the democratic principle in the European Union and their relationship with the Assembly directly elected by the European citizens: the European Parliament. Participants will be provided with the experiential knowledge and practical experience for understanding the complex and fascinating role of this institution.
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 and national institutions.
This Summer School has been awarded as a Jean Monnet module co-financed by the European Commission in 2013, 2014, 2015.

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Identities and Citizenship: Governing Constitutional Principles

Nasredeen Abdulbari

Harvard Law School

March 28, 2013

In several states across the globe, the relationship between the state and its cultural, religious, ethnic, and tribal components is still an issue of fierce constitutional and political debate, both at formal and informal levels. A nation’s inability to properly deal with this sensitive question, through abiding by certain constitutional principles, makes it susceptible to instability and insecurity, and probably dichotomy and fragmentation. This article argues that general recognition of diversity in a specific state is not alone enough to guarantee peace and stability for that state. Having a state that is impartial and treats its diverse components equally is a conditio sine qua non of the stability and peacefulness of heterogeneous societies and states. The idea that modern states are not nation-states reflects the necessity of drawing a clear line of distinction between identities and the apparatus of the state that should occupy itself with the higher interests of its components and promote the peaceful co-existence of its diverse groups and elements, on the one hand, and lay down the rules that are essential to its advancement, on the other. The post-colonial history of Sudan unequivocally demonstrates that the country’s successive national governments have failed to do so. If the post-July-9-2011 Sudan is to avoid wars, conflicts, and further fragmentation, then it is necessary for the State to treat its identities equally and reflect such equal treatment in its policies.
Number of Pages in PDF File: 31
Keywords: identities, citizenship, nation-state, diversity, the State, constitution, Sudan

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Outline of a Social Theory of Rights: A Neo-Pragmatist Approach

Filipe Carreira da Silva

University of Lisbon - Social Sciences Institute


European Journal of Social Theory, Forthcoming

In this article I articulate a neo-pragmatist theory of human rights by drawing and expanding upon the American classical pragmatism of G.H. Mead. I characterize this neo-pragmatist theory of rights by its anti-foundationalist, relational, fictive, and constitutive nature. I begin by providing a reconstruction of Mead’s social pragmatist approach to rights, a contribution systematically ignored by contemporary sociologists of rights. Next I detail the cost of this disciplinary oblivion by examining how much neo-pragmatism, critical theory, and legal consciousness studies have meanwhile gained by engaging with Mead’s work on rights. Finally, I discuss the contributions of this historical-theoretical exercise to the rapidly growing sociology of rights. I show that by supplementing my neo-Meadian approach with a recent interpretation of Hobbes’s fictional theory of politics, there appear substantive gains in the empirical study of the origins, consequences, meaning, and denial of rights.
Number of Pages in PDF File: 46
Keywords: Rights, pragmatism, G.H. Mead, legal consciousness

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Globalization and Law: Law Beyond the State

Ralf Michaels

Duke University - School of Law

March 15, 2013

Forthcoming in Law and Social Theory (Bannaker & Travers eds., Oxford, Hart Publishing, 2013)

The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished — globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state — territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need to move away from the traditional paradigm of both social and legal studies: methodological nationalism. I do not answer here how this paradigm should be replaced, but I discuss one prominent candidate of a meta-theory: transnational law. Transnational law, I suggest, helps transcend dichotomies of methodological nationalism that have become unhelpful: between domestic and international, between public and private, and between law and society
Number of Pages in PDF File: 18
Keywords: globalization, transnational law

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New (and old) papers by M.Dorf available at SSRN:

Sovereignty Frames and Sovereignty Claims

Neil Walker

University of Edinburgh, School of Law

March 28, 2013

Edinburgh School of Law Research Paper No. 2013/14

This essay argues that much of the contemporary confusion and controversy over the meaning and continuing utility of the concept of sovereignty stems from a failure to distinguish between sovereignty as a deep framing device for making sense of the modern legal and political word on the one hand, and the particular claims which are made on behalf of particular institutions, agencies, rules or other entities to possess sovereign authority on the other. The essay begins by providing a basic account of the difference between sovereignty as framing and sovereignty as claiming, setting out how, during the ascendancy of the modern state, the stability of the former is contrasted with the fluidity of the latter. It continues by analyzing why and how our understandings and uses of sovereignty have altered in the contemporary wave of globalization, with the very framing significance of sovereignty thrown into doubt. The essay argues, against that scepticism, for the continuing significance of the sovereignty frame in the global age. It concludes with some thoughts about the distinctive ways in which the evolving state of sovereignty framing and claiming plays out in the specific context of the United Kingdom and its external and internal legal and constitutional relations today. The resilient centrality of the doctrine of Parliamentary sovereignty tends to collapse the distinction between the sovereignty frame and the sovereignty claim in the UK context, with certain reductive consequences for the structure and focus of constitutional debate in the UK.
Number of Pages in PDF File: 28
Keywords: sovereignty, speech act, European Union, Parliamentary sovereignty, post-sovereignty, external sovereignty

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mercoledì 27 marzo 2013

Fiscal Bicameralism: the Core of a EU Constitution

Auke R. Leen

Leiden University - Leiden Law School

March 24, 2013

The present approach to what steps to take as a result of the rejection of the proposed European Constitution is almost guaranteed to be a very toilsome process inside the realm of partisan advocacy. Moreover the approach is almost irrelevant in terms of both explanatory content and normative potential.

There is another way: fiscal constraints. Instead of streamlining existing EU Treaties, and giving more room for majority voting, it would be better to shift the emphasis to the making of authentic fiscal rules. The paper is based on the idea that the EU is not a benevolent despot but a Leviathan; shifting the grounds of the discussion to the question of within which constitutional framework should the EU’s fiscal powers be exercised. A separation of fiscal powers, fiscal bicameralism and a sharp border between tasks of the EU and its members seems to be required. The method used cannot be empirical. There is a clear difference between our empirical knowledge of decision-making within a given framework and discussions about the framework itself.

In the wake of the demise of the Constitution a model fiscal constitution for the EU budget can become an agenda-setting focal point for a new research program and future EU policy.

Number of Pages in PDF File: 10
Keywords: model fiscal constitution, Austrian economics, constitutional political economics, fiscal sociology, European Union

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Law and Economics as Political Theory: Two Internal Critiques

Nahshon Perez

Bar Ilan University

March 24, 2013

The law and economics movement is one of the most influential movements in legal scholarship, and proves important beyond the narrow ken of lawyers and economists as one of its central goals is to provide concrete prescriptions for governments and court systems to a very wide range of subjects, from property rights to women’s rights. The law and economics movement, especially as articulated in the writings of Judge Richard Posner, has attracted critical attention from prominent political and legal theorists such as Dworkin and Nussbaum, but their important challenges have not stemmed the rise of this movement. This article aims to contribute to these critiques by fully articulating and examining some central features of law and economics theories. Specifically, as the law and economics movement emphasizes efficiency as its cherished goal, this article focuses on this concern, frequently using the general term 'efficiency theories'.

The current article examines the internal structure of this approach, and some of its likely consequences. This perspective takes Posner’s approach to be, in essence, a political theory - as it prescribes a consistent logic and has been applied to an astonishingly ambitious breadth of fields. It is high time, therefore, that political theorists give careful consideration to this approach.

The focus will be on two different central features of law and economics. First, law and economics arguments, with their strong emphasize on efficiency, will likely create instability in ownership if carried out to their logical conclusion. Furthermore, such an approach would make it difficult to explain the existence of property rights as a stable baseline to which considerations of efficiency apply to begin with. This, in turn, would bring about a devaluation in 'willingness to pay' (the 'currency' of such theories), and therefore contradict the intended goal of these theories. This argument is most adequate when applied to multi, or large N participants scenarios in repeated games situations. Second, the concept of 'market mimicking' central to the law and economics movement deserves a detailed examination as it places a heavy burden on institutions expected to apply it to actual cases.

Two central observations regarding the 'mimicking the market' function must be noted. First, mimicking the market will affect prices and ownership, and therefore wealth maximization, and thus cannot be considered simple mimicry. Second, there are important reasons to be skeptical that courts, governmental agencies, etc., can properly mimic the market and simulate non-revealed preferences.

Number of Pages in PDF File: 31
Keywords: law and economics, Richard Posner, market mimicking, non-revealed preferences, property rights, motivation, behavioral economics

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EU Law and Ireland: On the Measurement of Legal Evolutions through Judicial Activity

Elaine Fahey

Amsterdam Centre for European Law and Governance

March 12, 2013

The preliminary reference mechanism is unequivocally the most successful tool of the Court of Justice which it has used to shape the constitutional evolution of EU law in the national courts. However, various proponents of leading studies of its use (eg Stone Sweet & Brunnell: 1995, Alter: 2001) have omitted in their datasets smaller Member States such as Ireland, on account of quantitative insignificance. Moreover, the comparison of preliminary reference data with infringement action data and population size often leads to inconclusive results and some data sets make similar omissions (Golub: 1996; Fenger & Broberg: 2011). Low rates of preliminary references from the Irish courts over approximately a 40-year period, low intervention rates in litigation before the Court of Justice and poor compliance rate of implementation of internal market legislation until recently has characterised the relationship between Ireland and EU law, suggesting distinct trends (Fahey: 2007, 2010). However, the Irish judiciary is overwhelmingly pro-communautaire in matters of EU law. Key legal doctrines such as supremacy and direct effect were embraced from the outset of membership.

The paper considers methods for assessing the casestudy of Ireland, as a small-size Member State and assesses data since accession on preliminary references, as well as the operation of EU law in the Irish courts over a comparable period.

Number of Pages in PDF File: 12
Keywords: Preliminary references, Judicial activity, EU law in national context, Accession

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Standardization Agreements, Intellectual Property Rights and Anti-Competitive Concerns

Enrico Bonadio

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

January 1, 2013

Queen Mary Journal of Intellectual Property (2013), pp. 22-42

The relationship between standardization processes, intellectual property rights and competition rules has increasingly become of interest in the recent years. Recent investigations of the European Commission confirm that standardization processes and in particular ownership of IPRs that cover standardized technology might in certain circumstances infringe competition rules.

The article first explores the meaning and different forms of standardization. It then analyses selected parts of the Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, in particular those parts that cover standardisation agreements. The Guidelines have been adopted by the Commission in December 2010 with a view to addressing the anti-competitive concerns stemming from inter alia standardisation agreements (eg, they encourage IPRs holders to disclose their exclusive rights before the adoption of the standard, as well as to give an irrevocable commitment to offer to license the IPR to all parties interested on a fair, reasonable and non-discriminatory terms: so-called FRAND commitment).

The author will then present and comment on different points of view on whether the ownership of IPRs which cover standardized technologies really create market dominance capable of triggering anti-competitive behaviours. Finally, a set of additional solutions proposed by various legal scholars will be highlighted and commented.

Number of Pages in PDF File: 21
Keywords: Standardization, Intellectual Property Rights, Patents, Competition

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Gordillo and Canedo on the European Economic Constitution

La constitución económica de la Unión Europea. Bases de un modelo en constante evolución

Luis Ignacio Gordillo Pérez, José Ramón Canedo Arrillaga


Resumen: Este artículo trata de delimitar el contenido del concepto de Constitución económica aplicado a la Unión Europea. Una expresión que no es nueva, que ha recuperado su vigencia en los doctrinales actuales pero que es escurridizo y que es objeto de apropiación por parte de unos y otros, sin escapar a una compleja y constante evolución. Para ello se analizarán los conceptos de Constitución y Constitución económica aplicados a la realidad de la Unión Europea, todo ello desde una óptica ordoliberal. También se estudiará la inclusión de la regla de oro en el constitucionalismo europeo antes de destacar las principales reformas económicas que se han producido en el seno de la Unión. Finalmente, se hará hincapié en la necesidad de que los poderes públicos se mantengan fieles a los fundamentos de la Constitución económica europea.
Palabras clave: Constitución económica, ordoliberalismo, regla de oro.
Abstract: This article attempts to define the content of the concept of economic Constitution applied to the European Union. An expression that is not new, it has regained its relevance in the current doctrinal debates but is elusive and has become object of appropriation by each other, without escaping from a complex and constantly evolution process. In order to do so, this paper will analyze the concepts of Constitution and economic constitution applied to the reality of the European Union, taking into account an ordoliberal perspective. It will also be considered the inclusion of the “golden rule” in European constitutionalism before highlighting major economic reforms that have taken place within the Union. Finally, we will emphasize the need for public authorities remain faithful to the fundamentals of the European economic constitution.
Key words: Economic constitution, ordoliberalism, golden rule.

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domenica 24 marzo 2013

A European Law of International Responsibility? The Articles on the Responsibility of International Organizations and the European Union

Jean D'Aspremont

University of Manchester - School of Law; University of Amsterdam

March 20, 2013

V. Kosta, N. Skoutaris and V. Tzevelekos (eds.), The EU Accession to the ECHR (Hart, 2014), Forthcoming
Amsterdam Law School Research Paper No. 2013-19
Amsterdam Center for International Law No. 2013-04

The first section of this paper will briefly describe the plea made by the European Union for recognition of special rules of responsibility for regional economic integration organizations, with an emphasis on rules on attribution (Part 1). The paper will then critically evaluate this claim and the way it was addressed by the ILC in its work on the Articles on the Responsibility of International Organizations (Part 2). Arguing that the Articles on the Responsibility of International Organizations leaves enough room for the development of rules of international responsibility specific to regional economic integration organizations, the paper will then evaluate the possible source for such special rules and gauge the value of EU law for the sake of the lex specialis principle (Part 3). The paper will finally turn to the draft agreement on the accession of the EU to the European Convention on Human Rights (ECHR) and will reflect on the extent to which the mechanism set up on that occasion could be conducive to the emergence of special rules of international responsibility for the EU (Part 4).
Number of Pages in PDF File: 15
Keywords: International law, international organizations, international responsibility, responsibility of international organizations, attribution of conduct, attribution of responsibility, lex specialis, ECHR, human rights

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Supreme Court Recusal: From Marbury to the Modern Day

James J. Sample

Hofstra School of Law

March 20, 2013

Georgetown Journal of Legal Ethics, Vol. 26, p. 95, Winter 2013
Hofstra Univ. Legal Studies Research Paper No. 13-07

For Justices of the U.S. Supreme Court, controversies pitting personal conflicts — whether actual or merely alleged — against the constitutional commitment to the rule of law increasingly form the basis of a caustic and circular national dialogue that generates substantially more heat than light. While the profile of these controversies is undoubtedly waxing, the underlying tensions stretch back at least to Marbury v. Madison.

For all its seminal import, in Marbury, Chief Justice John Marshall adjudicated a case involving the validity of judicial commissions Marshall had himself signed and sealed. Equally remarkably, one of those judicial commissions belonged to Marshall’s own brother James.

In the centuries since, issues of actual and/or alleged Supreme Court conflicts have colored the context of landmark decisions, as well as the legacies of jurisprudential giants. Exploring many of the most compelling and controversial recusal sagas in the Court’s history, this Article trains attention on the factually-intensive real-world relationships that Supreme Court Justices have with issues and individuals. In today’s statutory disqualification terminology, these relationships fall — if anywhere — solely into the 28 U.S.C. § 455 nebulous catch-all provision in which a judge must disqualify himself or herself whenever their impartiality “might reasonably be questioned.”

The study yields a layered picture that is rich in historical imagery, anecdote, and analytically-critical context. In this respect, the Article includes, but is not limited to, treatments of the midnight Justices in Marbury; the Steel Seizure case and the “damned fool” whom Truman felt was the “biggest mistake he had made” as President; Thurgood Marshall’s long arc with the NAACP; perhaps the best-known duck-hunting trip of all time; Justice O’Connor’s election night outburst preceding Bush v. Gore; profound matters of issue identification involving Justices Ginsburg and Breyer; and finally the controversies surrounding the Patient Protection and Affordable Care Act, including the undisclosed income related to Virginia Thomas’s work opposing the health care legislation and Justice Kagan’s ill-advised e-mails including the memorable “I hear they have the votes, Larry!!”

The exploration serves as a navigational guide to the difficult but necessary task of separating the shrill cries from the serious constitutional concern of genuine Supreme Court conflict. The Article situates the analysis of Supreme Court disqualification practice, and particularly the circumstances involving Justices Thomas and Kagan vis-a`-vis the Patient Protection and Affordable Care Act, within the broader, enduring legal dichotomy of rules as opposed to standards. Pointing to Chief Justice Roberts’s recent, relatively bare assertion that when it comes to disqualification, the Supreme Court is simply constitution- ally and pragmatically different, the Article asserts that while the Chief Justice’s argument is neither emotionally nor intellectually satisfying, in an imperfect world, his argument is also entirely correct.

Finally, and in light of constitutional structure and historical norms, the Article asserts that it was entirely appropriate for both Justices Thomas and Kagan not to recuse themselves from the legal challenge to the Affordable Care Act. That said, the Article asserts that the controversies represent an important teachable moment — a moment in which the justices and the academy alike have the opportunity to elevate, rather than further denigrate, the national dialogue pertaining to high court conflicts.

Number of Pages in PDF File: 58
Keywords: Supreme Court, First Amendment, Due Process, recusal, judicial disqualification, Citizens United, judicial independence

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Language and the Institutional Dynamics of the Court of Justice of the European Communities: Lawyer-Linguists and the Production of a Multilingual Jurisprudence

Karen McAuliffe

University of Exeter - School of Law; Université du Luxembourg


Gueldry M (ed) How Globalizing Professions Deal With National Languages: Studies in Cultural Conflict and Cooperation, Lewiston, Queenstown, Lampeter: The Edwin Mellen Press, 2010, 239-263

The role of language and translation in the production of the jurisprudence of the Court of Justice (and Court of First Instance) of the European Communities is a significant one. That multilingual jurisprudence consists mainly of collegiate judgments drafted by jurists in a language that is generally not their mother tongue; it also undergoes many permutations of translation into/out of up to 23 different languages and thus is necessarily shaped by the particular way in which the Court of Justice works and by the actors within it. This paper considers the role played by language in the institutional dynamics of the Court of Justice, focusing in particular on those whose job it is to translate the jurisprudence of that Court, the lawyer-linguists. Based on qualitative data largely obtained from empirical fieldwork research, the first part of the paper considers the role of the Court’s lawyer-linguists prior to the 'mega-enlargement' of the European Union in 2004; the second part of the paper focuses on the implications of enlargement within the Court of Justice and considers whether such enlargement requires the rethinking of existing problematics and the development of new ways of functioning for that institution.
Number of Pages in PDF File: 22
Keywords: multilingual jurisprudence, legal translation, institutions, institutional dynamics, lawyer-linguists, jurilinguists, jurilinguistics

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Public Debt and Economic Growth in Italy

Fabrizio Balassone

Bank of Italy

Maura Francese

Bank of Italy

Angelo Pace

Bank of Italy

October 25, 2011

Bank of Italy Economic History Working Paper No. 11

In this paper we investigate the link between government debt-to-GDP ratio and real per capita income growth in Italy over 1861-2009. We model our regression analysis on a standard production function. Our results support the hypotheses of a negative relation between public debt and growth and of a stronger effect of foreign debt compared to domestic debt before World War I. The effect of public debt on growth appears to work mainly through reduced investment. These results help explain the different reaction of per capita GDP growth to the debt-ratio over 1880-1914 (when the negative correlation between the two variables is particularly strong) and 1985-2007 (when the correlation appears to break down when debt starts declining). A descriptive analysis of fiscal policy in these two periods suggests that differences in the timing of fiscal consolidation as well as in the size and composition of the budget are additional explanatory factors.
Number of Pages in PDF File: 35
Keywords: public debt, economic growth, Italian economic history

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Sultans of Swing? The Emerging WTO Case Law on TBT

Carlo Maria Cantore

EUI - Law Department

Petros C. Mavroidis

Columbia University - Law School


European Journal of Risk Regulation, February 2013

Following years of silence after EC-Sardines, three cases were adjudicated by Panels under the WTO Agreement on Technical Barriers to Trade (TBT) in 2011: US-Clove Cigarettes, US-Tuna II (Mexico), and US-COOL. These three cases dealt with key provisions of the Agreement, but the Panels adopted irreconcilable approaches. All three decisions were appealed before the Appellate Body (AB), but even the latter failed to apply a coherent methodology to adjudicate similar.

In Section II, we provide a brief account of the facts and the outcomes of the cases, whereas, in Section III we discuss the methodology applied by the WTO judiciary in the three cases.

Number of Pages in PDF File: 7
Keywords: TBT, US-COOL, US-Clove Cigarettes, US-Tuna II

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Implications of International Relations Theory for the International Law of Human Rights

Arthur Mark Weisburd

University of North Carolina (UNC) at Chapel Hill - School of Law


Columbia Journal of Transnational Law, Vol. 38, No. 1, p. 45, 1999
UNC Legal Studies Research Paper

This article seeks to apply international relations theory to international human rights law in an effort to examine the ways in which the structure of the international system affects that body of law. More specifically, the article attempts to determine whether that structure renders unlikely the success of the dominant approaches to the international protection of human rights, and makes suggestions for alternatives. The article first reviews the most important human rights treaty regimes, demonstrating the ineffectiveness of almost all of them. It then sets out several case studies of repressive regimes which were modified substantially with no obvious contribution made by international law to those modifications. Next, it provides a relatively brief description of leading theories of international relations-those focusing on interest-based bargaining, power-based bargaining, and interactions driven by guiding ideas. The following section applies the theory from the second section to the data from the first, and shows that all approaches to international relations theory would predict the actual lack of success of existing treaty regimes. It adds, however, that the case studies from the first section demonstrate the importance of changes in ideas in affecting the internal political structures of states. It concludes by arguing that human rights are more likely to be advanced through efforts to alter the thinking of populations and government officials than by more traditional legal tools, and makes some tentative suggestions as to how such efforts might proceed.

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Constitutional Law Meets Comparative Politics: Socio-Economic Rights and Political Realities (Chapter 10)

Ran Hirschl

University of Toronto - Faculty of Law

Evan Rosevear

University of Toronto - Department of Political Science and Faculty of Law

February 24, 2011

Campbell, Tom, K.D. Ewing, and Adam Tomkins, (eds.), 2011. The Legal Protection of Human Rights: Sceptical Essays. Oxford: Oxford University Press.

Three-quarters of the world’s written constitutions make reference to a right to education, and nearly half to a right to health care. Most also include a generic protection of ‘the right to life’ or of ‘human dignity’. And, several key regional and international human rights regimes protect a variety of subsistence rights. Despite this flurry of constitutional innovation, little attention has been given by legal academics to questions such as what prompts countries to constitutionally entrench socio-economic rights, the place of such rights in a larger scheme of the welfare state, or the non-idealist, ‘realpolitik’ factors that explain the variance in judicial interpretation of socio-economic rights provisions or divergence in the actual distributive consequences of social rights regimes. This chapter examines several possible ‘extra-constitutional’ explanations for the tremendous variance in constitutional protection of social and economic rights and our analysis suggests that there are multiple paths and trajectories to the realization (or neglect) of social welfare rights, of which constitutionalization is only one aspect. Moreover, a significant body of scholarship in comparative politics and political economy attempts to determine the primary causal factors involved in shaping the form and strength of social protections regarding inequalities in living conditions, redistribution of wealth, and provision of welfare services. We submit that this literature and the empirical data upon which it draws could serve as a solid jumping off point for an investigation of the relationship of constitutionalization of socio-economic rights and their actual provision. Likewise, an exclusively doctrinal-legalist examination of socio-economic rights jurisprudence is limited without taking into account the extra-judicial determinants of judicial behaviour, in particular given the fact that socio-economic rights jurisprudence often has crucial fiscal and political ramifications.
Number of Pages in PDF File: 23
Keywords: Law and Politics, Economic and Social Rights, Comparative Constitutional Law

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mercoledì 20 marzo 2013

Scotland's Constitutional Future: The Legal Issues

Tom Mullen 

University of Glasgow - School of Law

Stephen Tierney 

University of Edinburgh - School of Law

June 5, 2012

Edinburgh School of Law Research Paper No. 2013/16 

This is a report of presentations made during two day long seminars addressing the legal issues surrounding current debates over Scotland’s constitutional future. The first was held at Glasgow School of Law on 27 January 2012 and focused upon ‘The Process of Constitutional Change’, the second, at the Edinburgh Centre for Constitutional Law on 16 March 2012, addressed ‘Inter-Governmental Relations and External Affairs’. The report also covers comments, questions and debate generated by participants. The seminars brought together academics, policy-makers, including civil servants and government lawyers from the UK, Scottish, Northern Irish and Welsh governments, and the UK, Scottish and European parliaments, representatives of the legal profession in Scotland, representatives from the Electoral Commission in Scotland, and from the European Commission Office in Scotland. The seminars were conducted under the Chatham House rule and on this basis comments are not attributed directly to any speaker. The key aim was to bring legal and policy expertise to bear on a range of technical but important questions relating to current constitutional discussions. A primary objective was to advance public debate by offering a comprehensive overview of the legal and constitutional issues involved in possible changes to the devolution settlement including independence for Scotland, thereby outlining in an accessible way the principal issues to policy-makers, researchers and citizens engaging in these processes and debates. What follows is an account of the issues as they were presented and discussed. It tries to cover all of the substantial points raised but is not intended to be a fully comprehensive note of the proceedings.
Number of Pages in PDF File: 46
Keywords: Law, Public law, constitutional law, United Kingdom constitution, United Kingdom devolution, Scottish devolution, Scottish independence, Scotland independence referendum and legality, Scotland Act 1998, nation-state, national identity, nationalism, sovereignty, post-sovereign, popular sovereignty

Flexible Accommodation: Another Case of British Exceptionalism?

Stephen Tierney 

University of Edinburgh - School of Law

March 18, 2013

Edinburgh School of Law Research Paper No. 2013/15 

This paper reviews the devolution arrangements within the United Kingdom in historical perspective. It argues that the ad hoc and contingent nature of decentralisation has been one of the successes of the system, but that the model remains lop-sided in the absence of coherent arrangements for intergovernmental decision-making. It also goes on to address the forthcoming referendum on independence in Scotland.
Number of Pages in PDF File: 18
Keywords: law, public law, constitutional law, United Kingdom constitution, United Kingdom devolution, Scottish devolution, Scottish independence, Scotland independence referendum 2014, Scotland Act 1998, Northern Ireland Act 1998, Government of Wales Act 1998, Scotland Act 2012, nation, nation-state

venerdì 15 marzo 2013

Inside or Outside the System?

Eric A. Posner 

University of Chicago - Law School

Adrian Vermeule 

Harvard Law School 

March 12, 2013

U of Chicago, Public Law Working Paper No. 422 

In a typical pattern in the literature on public law, the diagnostic sections of a paper draw upon political science, economics or other disciplines to offer deeply pessimistic accounts of the motivations of relevant actors in the legal system. The prescriptive sections of the paper, however, then issue an optimistic proposal that the same actors should supply public-spirited solutions. Where the analyst makes inconsistent assumptions about the motivations of actors within the legal system, equivocating between external and internal perspectives, an inside/outside fallacy arises. We identify the fallacy, connect it to an economics literature on the “determinacy paradox,” and elicit its implications for the theory of public law.

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mercoledì 13 marzo 2013

Whose Political Constitution? Citizens and Referendums

Stephen Tierney 

University of Edinburgh - School of Law

March 12, 2013

Edinburgh School of Law Research Paper No. 2013/08 

One notable feature about the debate between ‘liberal’ and ‘political’ constitutionalism has been its elite focus. The courts and the legislature are discussed in efforts to determine the appropriate role of each in processes of constitution-framing and changing. But this task is often set up implicitly as a zero-sum game. Although it might be claimed that citizens are tangentially relevant to this power struggle, a detailed account of whether citizens should, and how they might, play a direct role in constitutional authorship is seldom if ever placed on the table. This paper considers the elite orientation of this debate questioning whether this is in normative terms acceptable, and in empirical terms credible, particularly as we consider how, over the past three decades, the referendum has emerged as an important vehicle for constitutional change in so many states.
Number of Pages in PDF File: 12
Keywords: law, constitutional law, constitutional theory, direct democracy, referendums, constitutionalism, political constitutionalism, republicanism, civic republicanism

Cátedra Jean Monnet y Seminario de Derecho Administrativo "Eduardo García de Enterría": ciclo de jornadas

Imagen ilustrativa de la noticia
La Cátedra Jean Monnet y el Seminario de Derecho Administrativo "Eduardo García de Enterría" se unen en la organización de un ciclo de jornadas sobre la Unión Europea en el marco constitucional de los Estados Miembros, que tendrán lugar en el Departamento de Derecho Administrativo, del 3 de abril al 22 de mayo, como se indica en el carte

The Savage Constitution

Gregory Ablavsky 

University of Pennsylvania Law School

March 7, 2013

Duke Law Journal, Forthcoming 

Conventional histories of the Constitution largely omit Natives. This Article challenges this absence and argues that Indian affairs played a key role in the Constitution’s creation, drafting, and ratification. It traces two constitutional narratives about Indians: a “Madisonian” and a “Hamiltonian” perspective. Both views arose from the failure of Indian policy under the Articles of Confederation, where explicit national authority could not constrain states, squatters, and Native nations. Nationalists agreed that this failure underscored the need for a stronger federal state, but disagreed about the explanation. Madisonians blamed interference with federal treaties, while the Hamiltonians argued the federal military was too weak to overawe the “savages.”

Both accounts resulted in constitutional remedies. More important than the Indian Commerce Clause, provisions declared federal treaties supreme law, barred state treaty-making, and provided exclusive federal power over western territories. But expansionist states won concessions guaranteeing federal protection and western land claims, while other provisions created a fiscal-military state committed to western expansion.

The two narratives fared differently during ratification. Few embraced centralization, while the Federalists repeatedly invoked “savages” to justify a stronger federal state and a standing army. This argument swayed Georgia, which ratified to secure federal aid in its ongoing war with the Creeks. But it also elevated dispossession of Natives into a constitutional principle. The Article concludes by exploring this history’s interpretive implications. It suggests the Indian affairs context unsettles conventional understandings of the Constitution as intended to restrain state power, and challenges both originalist and progressive assumptions about constitutional history.
Number of Pages in PDF File: 66
Keywords: Legal History, Constitutional History, Native Americans, Treaty Power, Supremacy Clause, War Powers

Tradizione Giuridica Occidentale E Modernizzazione Latinoamericana. Petrolio, Democrazia E Capitalismo Nell'Esperienza Venezuelana (Western Legal Tradition and Latin American Modernization. Oil, Democracy and Capitalism in Venezuala)

Alessandro Somma 

University of Ferrara - Law Department


Rechtsgeschichte - Legal History 20 (2012). 190-207 

Latin America, where capitalist and democratic institutions advanced slowly, is usually considered as the periphery of the Western Legal Tradition. However, historical evidence is given that even in Europe and North Amercia capitalism often established authoritarian or totalitarian political systems. Moreover, those who describe Latin American capitalism as less developed than the Western one, neglect that so called underdevelopment was at least partially imposed; they also ignore that what is meant by underdevelopment may also be seen as an alternative modernity program. The history and legal history of Venezuela in the first half of the past century shows that deficiencies in democracy were due to theories and practices which were widespread within the Western Legal Tradition; it also offers examples for considering some peculiarities in the development of capitalism as part of an original path to modernity, rather than a bad copy of it.
Note: Downloadable document is in Italian.
Number of Pages in PDF File: 20
Keywords: Modernization, Latin America, Multiple modernities

Constitutional Adjudication and the 'Dimensions' of Judicial Activism: Comparative Legal and Institutional Heuristics

Leonardo Pierdominici 

European University Institute - Department of Law (LAW); University of Bologna - Faculty of Law


Transnational Legal Theory, N. 3(3), 2012 

The dominant approach to constitutional law, and even more so to constitutional theory, has historically been judicial review-centred. Constitutional scholarship has often seemed ‘strong on positions and weak on analysis’, based on ‘foundationalist’/organic theories of judicial review, trying to justify or to reject the practice in toto and dictating its parameters. Behind such strong positions, and behind the search for ‘first-best principles’ of legitimacy, one can see a series of latent and intractable tensions, inherent in traditional constitutional theories of interpretation and adjudication: these tensions are the consequences of the unavoidably creative function of the judicial role. A pragmatic, second-best inquiry must probe the degree of such creativity, focusing on the questions of mode, limits, level of acceptability of law-making through the courts, and issues of institutional performance and systemic effects of adjudication. In light of all this, the paper will provide a taxonomy of the different types of criticisms that constitutional theories have raised regarding what we can broadly describe as the democratic legitimacy concerns of constitutional review. These are often lumped together, in different contexts, under the concept of ‘judicial activism’, ranging from the very existence of judicial review, to the different forms of conceptualising the proper role of judicial interventions and the different modalities of constitutional adjudication. The paper will deal, in comparative perspective, with both American and Continental historical constitutional theories as well as the most recent trends of Institutional Analysis. The objective is to sketch a useful framework and some heuristic devices for the study of courts, different kinds of constitutional adjudication, and the spaces of discretion that are thereby implied.
Keywords: judicial review, constitutional theory, judicial activism, comparative institutional analysis

L'evoluzione costituzionale israeliana nella giurisprudenza della Corte suprema (The Israeli Constitutional Evolution in the Supreme Court's Case Law)

Leonardo Pierdominici 

European University Institute - Department of Law (LAW); University of Bologna - Faculty of Law


Rivista Trimestrale di Diritto Pubblico, n. 2, 2012 

Il contributo propone un'analisi aggiornata del ruolo storico e delle modalità attuali della constitutional adjudication israeliana, prendendo spunto da una recente sentenza della Corte suprema di Gerusalemme che, nella propria funzione di Alta corte di giustizia, ha per la prima volta invalidato in toto una disposizione legislativa impugnata dai ricorrenti per motivi di incostituzionalità. Trattasi del primo, nuovo caso di judicial review of legislation da parte della Corte Suprema israeliana nella nuova composizione presieduta dal giudice Beinisch, dopo un periodo di frizioni tra poteri dello stato nel paese e una fase di percepito self-restraint da parte della Corte stessa. E' facile scorgere, tanto attraverso un'analisi storica quanto addentrandosi nei percorsi motivazionali della sentenza, i significati 'sistemici' e le implicazioni di generale architettura costituzionale del nuovo caso, in un ordinamento ancora «alla ricerca» della propria costituzione.

The goal of the paper is to provide an updated analysis of the historical role and of the current modalities of the Israeli constitutional adjudication. It has been inspired by a recent judgment of the Israeli Supreme Court that, in its capacity as High Court of Justice, has for the first time fully invalidated a law contested by the applicants on grounds of unconstitutionality. This is the first new case of judicial review of legislation by the Israeli Supreme Court, in its new composition under the presidency of Justice Beinisch, after a period of clashes between the powers of the state in the country and a time of perceived self-restraint by the Court. It is easy to see, both through a historical analysis and by exploring the motivational pathways of the judgment, the 'systemic' meanings and the implications for the general constitutional architecture of the new case, in a legal system still “in quest” of a constitution.
Note: Downloadable document is in Italian.
Keywords: comparative constitutional law, judicial review, constitutional theory, judicial activism

lunedì 11 marzo 2013

Proportionality and the Incommensurability Challenge – Some Lessons from the South African Constitutional Court

Niels Petersen 

Max Planck Institute for Research on Collective Goods; NYU School of Law

March 8, 2013

NYU School of Law, Public Law Research Paper No. 13-07 

This paper analyzes the application of the proportionality test by the South African Constitutional Court. In contrast to other courts, like the Canadian Supreme Court or the German Constitutional Court, the South African Court has not adopted a structured proportionality test with separate steps. Instead, proportionality only consists of a global balancing test. The Court thus seems to be particularly susceptible to the critique that is voiced in the legal literature against the rationality of balancing. Many critics of balancing claim that courts make policy decisions by second-guessing legislative value-decisions. However, a close analysis of the case law of the South African Constitutional Court reveals a more nuanced picture. In practice, the Court rarely balances when it finds that a law is incompatible with the constitution. Instead, it often bases its judgments on rationality arguments. In sum, the Court is rather concerned with holding the legislature accountable to take decisions that represent all groups of the society than with determining the resolution of deep value conflicts.
Number of Pages in PDF File: 24
Keywords: Proportionality, balancing, South Africa, constitutional law, incommensurability, consistency, fundamental rights, Makwanyane, Manamela, justification