venerdì 21 giugno 2013

The EU Citizenship in Purely Internal Situations and Reverse Discrimination

Erik Kotlarik 

Central European University (CEU)

March 7, 2013

The EU citizenship is unique, because it is parasitizing on the national citizenship. Yet it has nearly gained self-standing status through the jurisprudence of the CJEU. However, the fact that the EU citizenship has been incrementally carved out on the case-by-case basis is responsible for its patchwork character which causes serious problems. Firstly, Member States have little understanding for the concept of the EU citizenship extended by the judge-made law since it has compromised their sovereignty in such areas as social and immigration policy. Secondly, reverse discrimination, pervading malaise of the EU citizenship, presents a situation where the static EU citizens are discriminated against dynamic one´s and even against Third Country Nationals. Hence the EU citizenship is perceived as a concept benefitting only small minority to the detriment of majority which is the reason why the EU citizenship failed to attain broad allegiance. Unpopular among Member States, lacking the support of ordinary citizens, the EU citizenship needs impetus in order to imbue the EU integration with legitimacy, instead of becoming reason of its erosion.
Number of Pages in PDF File: 15
Keywords: European Union Law, EU Citizenship, Citizenship, Reverse Discrimination, Purely Internal Situation, Third Country Nationals

Equality Across the Legal Orders; or Voiding EU Citizenship of Content

Dimitry Kochenov 

University of Groningen - Faculty of Law

June 18, 2013

E Guild, D Kostakopoulou and S Mantu (ed) The Reconceptualisation of European Citizenship (2014) (Forthcoming) 

This chapter makes a simple claim. The direct by-product of a purely formalistic application of the national and supranational principles of ‘equality’ strictly within the confines of the different legal orders in, which is the case in the Union today, leads to injustice and is not sustainable. In this situation no one can legitimately claim that basic equality before the law in the Union is safeguarded. More often than not it is even unknown which law is to apply and why and a satisfactory test to resolve jurisdictional conflicts is missing. In this situation EU citizenship is profoundly undermined and the very promise of the European integration project is ditched by formalism. To have future, the Union is bound to turn to the concept of justice seriously, providing for the ability to guarantee meaningful equality for its citizens.
Number of Pages in PDF File: 31
Keywords: EU law, citizenship, equality, principle, rule of law, federalism, wholly internal situations, reverse discrimination, discrimination, non-discrimination, substantive equality

Hayek and Comparative Constitutional Law

Steven G. Calabresi 

Northwestern University - School of Law

Bradley Silverman 

Columbia Law School

June 18, 2013

Northwestern Law & Econ Research Paper No. 13-23
Northwestern Public Law Research Paper No. 13-23 

In this paper, we set out to identify and articulate a Hayekian justification for Professor Jeremy Waldron’s proposed “ius gentium,” which he characterizes as an emerging global common law of legal norms, with a particular emphasis on human rights. Drawing on the writings of Friedrich A. Hayek in “Law, Legislation and Liberty,” we will explain how Hayek’s distinction between systems of spontaneous and planned order may apply to what Waldron calls the ius gentium and provides a better theoretical justification for it than that which Waldron puts forward. After reviewing some of the criticisms that can be levied against Waldron’s theory, we explore Hayek’s writings and how they apply to the ius gentium. We also explain why the ius gentium may be said to possess the characteristics that are present for “crowd wisdom,” or savvy and intelligent decision-making by large groups. Finally, we will examine five major criticisms that might be made against reliance on the ius gentium, and we will then attempt to offer some partial arguments in response.
Number of Pages in PDF File: 192
Keywords: United States Constitution, Empirical, Foreign Legal System, Natural Law, Common Law

venerdì 14 giugno 2013

Transnational Environmental Law, Editorial

Thijs F. M. Etty 

VU University Amsterdam - Institute for Environmental Studies (IVM), and VU Law Faculty, Transnational Legal Studies Department

Veerle Heyvaert 

London School of Economics & Political Science (LSE)

Cinnamon Piñon Carlarne 

Ohio State University (OSU) - Michael E. Moritz College of Law

Daniel A. Farber 

University of California, Berkeley - School of Law

Jolene Lin 

University of Hong Kong - Faculty of Law

Joanne Scott 

University College London - Faculty of Laws

April 1, 2013

Transnational Environmental Law (TEL), Vol. 2, Iss. 1 (April) 2013, Cambridge University Press 

We are delighted to launch the second volume of Transnational Environmental Law (TEL) with a rich collection of pieces embodying a wide range of topics and methodological approaches. While the contributions focus upon specific topics, they also speak more broadly to issues that are pervasive in transnational environmental law: mutual influence between legal systems, multi-level integration, regime fragmentation and overlap, and the breaking down of traditional hierarchies as governance frameworks evolve against a backdrop of uncertainty, contestation and unpredictable change.

In addition to a collection of free-standing articles, this issue of TEL offers a new feature: within its covers, readers will find three articles that form part of a mini-symposium on ‘Global Environmental Risk Governance under Conditions of Scientific Uncertainty’. The symposium is introduced by Oren Perez and Reut Snir, the organizers of the conference from which the contributions were drawn, and showcases cutting edge research on the interaction between law and science in a transnational context.

Number of Pages in PDF File: 7
Keywords: Transnational Environmental Law, Governance, Risk, Precaution, Scientific Uncertainty

The Challenge of, and Challenges to, Originalism

Lee J. Strang 

University of Toledo College of Law

June 12, 2013

The Challenge of Originalism: Theories of Constitutional Interpretation, (Grant Huscroft & Bradley W. Miller, eds.). Cambridge, Cambridge University Press. 2011. PP. IX, 305 

The Challenge of Originalism does many things well: it showcases the sophistication of current originalist scholarship; it displays the resonance that originalist arguments have with diverse and international audiences; and it reminds us that originalists are far from having won the debate. The Challenge of Originalism brings together some of the leading lights of originalist scholarship, and puts them in conversation with each other and with prominent critics.

The Challenge of Originalism also, as all collections must, leaves out some important topics. Most prominent is originalism’s relationship to nonoriginalist precedent, a subject of significant scholarly interest over the past ten years. Also, The Challenge of Originalism introduces some of the key recent originalist moves, such as incorporating the concept of constitutional construction, without fully elucidating them.

The essays in The Challenge of Originalism are consistently nuanced and thought-provoking. The Challenge of Originalism includes introductory material to originalism and the debates surrounding it, and its consistently high level of sophistication also makes it valuable to scholars already engaged in these debates.

In Part II, I first describe the important contributions made by and in The Challenge of Originalism. In particular, The Challenge of Originalism showcases originalism’s sophistication and broad appeal. Then, in Part III, I suggest two important and unresolved challenges to originalism: (1) fully explaining the nature and scope of constitutional construction; and (2) describing what role, if any, nonoriginalist precedent retains in originalism. I end, in Part IV, by suggesting that the essays exemplify the chief reason for originalism’s continuing and broad-based allure — the reason it presents a challenge — the Constitution’s writtenness.

Number of Pages in PDF File: 19
Keywords: originalism, precedent, construction

Constitutional Convergence and Customary International Law

Rebecca Crootof 


June 12, 2013

Harvard International Law Journal, Vol. 54, No. 195, 2013 

In Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice, Zachary Elkins, Tom Ginsburg, and Beth Simmons study the effects of post-World War II human rights texts on domestic constitutions and create a comprehensive data set detailing how each right’s popularity has evolved over time. This response focuses on the consequences of the authors’ data on rights convergence for customary international law theory, arguing that future scholars advocating that a right has obtained customary or jus cogens status will need to address whether that right appears in a majority of domestic constitutions and whether it has risen or declined in popularity.
Number of Pages in PDF File: 9
Keywords: convergence, customary international law, norms, jus cogens

giovedì 13 giugno 2013

Proportionality and Rights Inflation

Kai Möller 

London School of Economics - Law Department

June 1, 2013

LSE Legal Studies Working Paper No. 17/2013 

Proportionality is the most important principle of constitutional rights law around the world, but our theoretical grasp of both the principle itself and the conception of rights of which it is the crucial part is still emerging. The goal of this chapter is to contribute to the scholarly discussion on proportionality by exposing and exploring an important link between proportionality and rights inflation, that is, the phenomenon that increasingly relatively trivial interests are protected as rights. My claim is that proportionality is not only compatible with rights inflation, but that it necessitates it: under a theory of rights that endorses proportionality, there is no coherent way to avoid the conclusion that all autonomy interests should be protected as rights, and this includes interests in engaging in trivial and even immoral activities. Although this intuitively implausible result may strengthen some in their doubts about or rejection of proportionality, this chapter will proceed by showing that, while my argument, if correct, necessitates the revision of some widely held views about the nature and justification of human and constitutional rights, there is nothing incoherent or unattractive about such a view. On the contrary, rights inflation and proportionality are part and parcel of an attractive conception of constitutional rights.
Number of Pages in PDF File: 18

Brokering Europe:
Euro-Lawyers and the Making of a Transnational Polity

Antoine Vauchez 

Centre national de la recherche scientifique

May 14, 2013

LSE Legal Studies Working Paper No. 19/2013 

This Working Paper explores how the entanglement between Law and European polity-building was initially established. To this aim, it follows the short historical sequence in which EC institutions and policies set up by the Rome Treaties were first invented and formalized. It considers the early emergence of transnational microcosms of practitioners of European politics, judiciary, bureaucracy and market in Brussels, Strasbourg and Luxembourg. Often endowed with legal credentials and well-connected to legal scholarship and judiciaries, these first office holders shaped the foundational concepts and theories through which EC-specific institutions and policies soon established themselves. The paper therefore contends that lawyers and their ad hoc legal theories were integral to the transformation of the institutional and policy complex set up by the Paris and the Rome Treaties (three separate Communities, a complex set of institutions, a variety of policies) into one ‘constitutional settlement’ providing a unitary understanding of this emerging transnational institutional terrain.

Full text available at:

Constitutional Theories: A Taxonomy and (Implicit) Critique

Larry Alexander 

University of San Diego School of Law

June 11, 2013

San Diego Legal Studies Paper No. 13-120 

I am honored to have been invited to present this Madison lecture, and I want to thank my hosts, Robby George and Brad Wilson, for their hospitality and for the excellence achieved by the Madison program under their stewardship.

My charge was to present something on constitutional theory. Now, as you shall see, I do work in one corner of constitutional theory; and, of course, I believe it is the right corner to work in, and that all constitutional theorists should be working in my corner. The baleful truth, however, is that most constitutional theorists reject that claim, and this despite several articles of mine urging them to do otherwise. So, to date I have failed in my normative aspirations regarding constitutional theory. And this lecture will steer clear of preaching to the unconverted.

What I intend to do instead is to categorize the extant approaches to constitutional theory, including mine. I am going to taxonomize rather than criticize — although, I confess, some criticisms will seep through, albeit mainly implicitly.

Number of Pages in PDF File: 26
Keywords: originalism, moral theory, political theory, modalities

Global Law: The Spontaneous, Gradual Emergence of a New Legal Order

Joshua D. H. Karton 

Queen's University - Faculty of Law


17(2) Tilburg Law Review, pp. 276-284, 2012 

This article argues that the debate over whether international law can apply to non-state actors misses the point. The useful distinction is not between rules that regulate the obligations of states and those that regulate the obligations of non-state actors, but rather between rules that regulate the reciprocal obligations of states to each other (international laws) and rules that set global standards that must be obeyed by all entities, state and nonstate alike, regardless of national laws and boundaries. This latter category is the emerging phenomenon of global law. Global laws take varying forms, but they all seek to bind the entire globe to a singular global standard — they do not so much cross national boundaries as ignore them. Global law remains inchoate, but is increasing in both scope and coherence. Those seeking to predict the course that global law will take can look to the current example of international commercial arbitration, which is global law par excellence.
Number of Pages in PDF File: 9
Keywords: law, globalization, global law, transnational law

martedì 11 giugno 2013

The Euro-Crisis as a Catalyst of the Europeanization of Public Spheres? A Cross-Temporal Study of the Netherlands and Germany

Maurits Meijers 

Hertie School of Governance

June 10, 2013

LEQS Paper No. 62 

In this paper it is analyzed whether the the euro-crisis has induced a change in the degree of Europeanization of national public spheres. It is argued that ‘mediatizing politics’ on TV is a prerequisite for the accountability structures of liberal democracies. Examining the degree of Europeanization of public broadcaster news in Germany and the Netherlands in 2008 and 2011 this paper gauges the changes in terms of visibility of European issues and in terms of salience of items on European issues. Moreover it is analyzed which news categories predominate, the tone of news items on European issues, and which explicit evaluations of European integration appear – and how these elements are affected by the euro-crisis. Finally, it is shown that although the Europeanization of public spheres increased as the euro-crisis developed, the EU was mostly portrayed negatively, focused predominantly on economic issues and political contestation was hardly visible.

Full text available at:

domenica 9 giugno 2013

The European Union: Shaping Migration Patterns in the Neighbourhood...and Beyond?

Laure Delcour 

Institut de Relations Internationales et Stratégiques (IRIS); ENA; College of Europe

June 8, 2013

Amtenbrink, F., Kochenov, D. (eds), The European Union's Shaping of the Legal International Order, Cambridge University Press, 2013 

Since the beginning of the last decade the Union has more and more sought to pursue its migration policy externally, especially in its neighbourhood. Migration issues are salient under the European Neighbourhood Policy (ENP) created in 2004. Neighbours indeed play a key role in migration flows to the EU, either as countries of origin or transit countries. While the migration toolbox used under the ENP was conceived for a specific external policy targeting bordering countries, this chapter maintains that its impact is not circumscribed to the EU’s fringes. The ENP migration toolbox indeed provides the Union with a leverage affecting migration patterns beyond the EU’s Southern and Eastern peripheries. By shaping ENP partner countries’ response to international migration, the EU influences migration flows and governance not only in the neighbourhood, but also in adjacent regions. In a policy area characterised both by interdependence of states’ migration policies and the lack of an international migration regime, the neighbourhood thus plays a pivotal role in the EU’s approach to migration worldwide and in the EU’s influence on global migration patterns.
Number of Pages in PDF File: 15
Keywords: European Union, neighbourhood, migration, transregionalism

The Science, Law and Policy of Neonicotinoids and Bees: A New Test Case for the Precautionary Principle

Alberto Alemanno 

HEC Paris - Law Department

June 7, 2013

European Journal of Risk Regulation, 2/2013 

Once more, while facing an analogous risk phenomenon affecting their predominantly homogeneous societal and economic interests, the US and EU authorities seem to adopt diverging stances. Amid the publication of several new studies and a set of EFSA scientific opinions linking the use of the world’s most widely used pesticides to bee decline, the European Union is poised to adopt a temporary ban on their use. While the Commission does not expressly rely on it, its restrictive decision is clearly based on the controversial precautionary principle. Yet, as it is discussed in this article, the conformity of this decision with the requirements that determine the legal invocation of this principle remains doubtful.

This article proceeds as follow. Part II first introduces the reader to the main features and usages of these controversial insecticides, called neonicotinoids. It then discusses how concerns have arisen around their use and analyses the available science exploring their impact on the sudden decline of bee colonies. Part III identifies and comments the restrictive actions currently undertaken across the European Union both at the national and EU level. Part IV in turn provides an overview of the scientific and regulatory approaches adopted by US authorities vis-à-vis neonicotinoids. By building upon the previous two sections, Part V contrasts the EU scientific and regulatory approach towards the use of these pesticides with that adopted by the US authorities. It then attempts at illustrating the factors explaining the current regulatory divergence across the Atlantic upon the issue of neonicotinoids. In order to provide a legal analysis of the EU restrictive stance over these pesticides, Part VI measures how the EU controversial restrictive measures score under both EU and WTO law. Lastly, some final conclusions provide some recommendations on how to render less controversial the invocation of the precautionary principle in the EU and beyond.

Number of Pages in PDF File: 40
Keywords: precautionary principle, EU law, risk regulation, pesticides, EFSA, transatlantic, risk management, risk assessment, risk communication, EPA, USDA

Ronald Dworkin: An Appreciation

Jeremy Waldron 

New York University School of Law

June 7, 2013

This is a brief tribute to Ronald Dworkin and an overview of the contributions that he made to jurisprudence. It is a written version of remarks that were presented at the Memorial Service for Professor Dworkin, at St. John's Smith Square, London, on Wednesday, June 5, 2013. The remarks cover his view of adjudication, the right answer thesis, and the obligation that lawyers, scholars and judges have to the whole body of the law. It also covers the view – which I call the artery of Dworkin's jurisprudence – that legal reasoning is a form of moral reasoning. And it relates all this to the unifying ideas about dignity in "Justice for Hedgehogs."
Number of Pages in PDF File: 8
Keywords: adjudication, dignity, Dworkin, integrity, law, legality, positivism, rights, right answer thesis, rule of law, separation 

sabato 8 giugno 2013

STALS (Sant'Anna Legal Studies) Cristina Fasone

“Le commissioni parlamentari nelle evoluzioni della  forma di governo italiana”
A proposito di un recente libro di Cristina Fasone:
Sistemi di commissioni parlamentari e forme di governo, Cedam, Padova, 2012


Cristina Fasone (LUISS)
Luca Gori (SSSUP)
Nicola Lupo (LUISS)
Giuseppe Martinico (SSSUP/CEPC)


Emanuele Rossi (SSSUP)

Venue: Scuola Superiore S.Anna, Pisa
time: 27 June 2013
Aula 3

STALS (Sant'Anna Legal Studies) Conference: Katarzyna Granat

The Role of National Parliaments in the Policing of the Subsidiarity Principle


Katarzyna Anna Granat
(European University Institute)


Cristina Fasone
Nicola Lupo

Venue: Scuola Superiore S.Anna, Pisa
time: 27 June 2013
Aula 3

When is International Law Useful?

Alan O. Sykes 

New York University School of Law

June 5, 2013

NYU Journal of International Law & Politics, Forthcoming 

This essay, forthcoming in the NYU Journal of International Law and Politics, is adapted from the inaugural Robert A. Kindler Professorship of Law lecture at NYU School of Law. It develops an economic perspective on the utility of international law, identifying the reasons why international law is sometimes successful at orchestrating international cooperation and sometimes unsuccessful. It considers two general accounts of the gains from international cooperation, including the control of trans-national externalities and domestic commitment issues. It argues that international law is more likely to be successful when the gains from cooperation are symmetrical and reciprocal, which facilitates the creation of self-enforcing agreements. Examples of successful and unsuccessful cooperation are developed from various fields of international law, including international trade, the laws of war, immigration, human rights, and international investment law.
Number of Pages in PDF File: 30
Keywords: International law, international trade, international investment

The Arab Uprisings and the European Union: In Search of a Comprehensive Strategy

Jan Wouters 

Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies

Sanderijn Duquet 

Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies

January 1, 2013

KU Leuven - Leuven Centre for Global Governance Studies Working Paper No. 98 

Having close historical, geographical, and cultural links with countries in the Middle East and North Africa (MENA), the European Union (EU) has been involved in the region for decades. Policies have encompassed challenges related to security, economics, social issues, politics, and legislation. Events during and following the Arab Spring of 2011, however, have triggered the EU to revise its relations with countries in transition. This working paper critically reviews the different policies and instruments at hand to respond to the Arab uprisings. Furthermore, the EU's structural efforts to engage with MENA countries bilaterally, to cooperate with the United Nations (UN) and regional organisations, and to engage with non-state actors are assessed. It is argued that the EU still lacks a long-term strategy in the MENA. Drawing from this analysis, a number of policy suggestions are made in order to enable the EU to address in a more comprehensive manner the rapid changes in the Arab world.
Number of Pages in PDF File: 33
Keywords: Arab spring, Middle East and North Africa, European External Action Service, High Representative, Regional policy, Strategic cooperation, International organisations

The G20 and Informal International Lawmaking

Jan Wouters 

Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies

Dylan Geraets 

KU Leuven

March 1, 2012

KU Leuven - Leuven Centre for Global Governance Studies Working Paper No. 86 

In recent years, G20 has emerged as a relatively new, yet influential actor on the world stage which brings together the leaders of the twenty systemically most important economies. Its informality and flexible character warrant the use of the term ‘Informal International Lawmaking’ with regard to this global network. ‘Informal International Lawmaking’ (or “IN-LAW”) comprises of networks of global cooperation that are distinct from ‘traditional’ international law as they display less formal characteristics; the actors are not necessarily diplomats or heads of state, the process is not necessarily structured by formal proceedings and the output is not (always) an internationally binding legal instrument. G20 displays many of these characteristics and, as a result, there are concerns as regards the legitimacy and accountability of the network as an actor in Global Governance. The authors argue that as G20 was never intended to produce international legally binding outcomes, its informality results in a setting where world leaders can discuss global issues without having to fear to be immediately bound by legal commitments. This does, however, not mean that we should disregard the concerns raised as regards the accountability and legitimacy of G20. The authors support the proposed initiatives to create a more structured dialogue between G20 and its Members (the internal stakeholders) and those excluded from the network (the external stakeholders).
Number of Pages in PDF File: 33
Keywords: Global Governance, Global Economic Governance, G20, Informal International Lawmaking, International Law, Global Financial Crisis, International Organizations, Accountability, Legitimacy, Effectiveness

Recasting Secularism as One Conception of the Good among Many in a Post-Secular Constitutional Polity

Michel Rosenfeld 

Benjamin N. Cardozo School of Law

June 4, 2013

Susanna Mancini and Michel Rosenfeld (eds.), Constitutional Secularism in an Age of Religious Revival, Oxford University Press (Forthcoming) 

Modern Enlightenment based constitutionalism accords secularism a privileged position: by remaining secular, the public sphere should warrant neutrality among religions and among the latter and non-religious ideologies in order to provide an optimal setting for the realization of freedom of religion as well as of freedom from religion. In recent decades, however, this institutional secularism has come under intense attack from a number of different quarters intent on dislodging it from its constitutional pedestal. These attacks have targeted secularism’s claim to neutrality from religious as well as non-religious perspectives. So long as secularism is the target and as its constitutionally privileged place is perceived as not fully eliminated, it can easily be portrayed as benefitting from an unfair advantage in the clash of ideologies. But what if secularism lost all priority, preference or advantage in the constitutional firmament? In that case, should secularism stand on an equal footing with religion? Or should it be cast as the irreligious or anti-religious in a struggle against religion? Or else, should secularism reemerge as primus inter pares or, on the contrary, as subordinate among all existing competing conceptions of the good?

In this Chapter, I explore the case for “ideological” secularism as one of many conceptions of the good competing against others in a post-secular constitutional polity. Adopting a pluralist perspective, I conclude that under current circumstances ideological secularism is easier to defend than institutional secularism.

Number of Pages in PDF File: 57
Keywords: Secularism, freedom of religion, freedom from religion, constitutionalism, pluralism, conflicts between science and religion, secular versus religious education, liberal versus pluralist conception of constitutional democracy

The Tempting of Europe, the Political Seduction of the Cross

Susanna Mancini 

University of Bologna; Johns Hopkins University - Bologna Center

June 5, 2013

Susanna Mancini and Michel Rosenfeld (eds.), Constitutional Secularism in an Age of Religious Revival, Oxford University Press (Forthcoming) 

This article examines legal and political responses to the growing presence of Islam in Europe through the lens of Carl Schmitt’s thought. It points out how such responses draw on an essentialist and idealized notion of the people, and aim at artificially reinforcing the cultural and religious homogeneous character of the European public sphere, thus pursuing an ‘identitarian’ model of democracy. It concludes that the role attributed to the ‘Christian roots’ of Europe in contemporary discourses is analogous to the role that Schmitt ascribed to the Catholic Church in representing the values which were the essence of European civilization and separated it from ‘uncivilized’ others.
Number of Pages in PDF File: 39
Keywords: headscarf, burqa, Islam, Christianity, Militant democracy, identitarian democracy, Carl Schmitt, Islamophobia, Anti-Semitism, Religious freedom, political pluralism, unity, homogeneity

The EU at the G20 and the G20's Impact on the EU

Jan Wouters 

Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies

Sven Van Kerckhoven 

KU Leuven - Leuven Centre for Global Governance Studies

Jed Odermatt 

KU Leuven - Leuven Centre for Global Governance Studies

May 2012

This working paper analyses the relationship between the European Union and the G20, with an emphasis on how the two bodies have impacted and shaped each other’s agendas. Both entities mark, in very different ways, a changing world order in which states are cooperating ever more closely in order to tackle transnational challenges. However, the relationship between both entities deserves more attention. In this working paper, both the representation of the EU (and its Member States) at the G20 and the impact of G20 decisions on EU legislation are analysed. We argue that the relationship between both organizations is at the same time problematic and symbiotic. Symbiotic as the EU has influenced the functioning of the G20 while the G20 agenda has itself had an impact on EU legislation. It is problematic in the sense that the EU is arguably over-represented in the G20, and there is little in the EU’s treaties to guide the relationship between the EU and global processes such as the G20.
Number of Pages in PDF File: 22
Keywords: G20, EU, EU legislation, financial crisis, international organisations

Originalism Talk: A Legal History

Mary Ziegler 

Florida State University College of Law

June 5, 2013

FSU College of Law, Public Law Research Paper No. 638 

Progressives have long recognized the tremendous political appeal of originalism: it achieves results consistent with conservative values but promises the public judicial neutrality. By drawing on new historical research on antiabortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk — the use of arguments, terms, and objectives associated with conservative originalism.

Scholars have documented the costs confronted by social movements reliant on rights-based rhetoric, particularly when activists seek social change in the courts. Originalism talk was similarly constraining. By becoming part of an originalist coalition, abortion opponents increased their influence over the selection of federal judicial nominees. At the same time, in stressing originalist rhetoric, abortion opponents had to set aside longstanding constitutional commitments involving the right to life, the personhood of the fetus, and the existence of rights based in natural law or human-rights principles.

The story of antiabortion constitutionalism offers insight into progressive attempts to create a doctrinally satisfying and politically resonant alternative to conservative originalism. Often, the issue is how to create an interpretive method that accomplishes as much as originalism: advancing progressive constitutional beliefs while appealing to the public’s interest in the rule of law. As this Article shows, however, it is not clear that the benefits of belonging to the originalist coalition outweigh its costs.

Number of Pages in PDF File: 61