giovedì 31 dicembre 2015

Functional Method in Comparative Law – Much Ado About Nothing?

Jaakko Husa 
University of Lapland - Faculty of Law

January 1, 2013

EPLJ 2013; Vol. 2 No. 1 

According to sceptics there seems to be no point in talking about the functional method in comparative law or functionalism in scholarly comparative law. It has been claimed that functional comparative law ‘stands for everything that is bad about mainstream comparative law’ to its opponents. This article seeks to understand and explain the quintessential qualities of functionalism in order to highlight why it is so resilient. It is argued that there are certain qualities of functionalism which make it an intuitively tempting metaphor for a lawyer and especially for a Western comparative lawyer. One crucial motivational force behind the core argument of this paper is a suspicion according to which there has been perhaps too much ado about nothing in the debate over functionalism in comparative law.

Number of Pages in PDF File: 18

Keywords: functionalism, comparative law
Full text available at:
Holey Union: The Constitutional Paradox of Secession

Rivka Weill 
Radzyner School of Law - Interdisciplinary Center (IDC)

November 27, 2014

There are secessionist movements in all parts of the world, encompassing both democratic and non-democratic countries. It is typically thought that this important phenomenon is regulated by international law alone. But, this article argues that when looking anew at constitutional law through the lens of secession, democracies’ weak spots are revealed. While political actors and scholars traditionally believe that bans on political parties ('militant democracy') and constitutional eternity clauses (`unconstitutional constitutional amendment`) are used and justified to protect democratic values alone, they are in fact also used to fight against secession. Democracies have been able to conceal their fight against secessionists, by creating a large gap between “the law on the books” and “the law as practiced.” This raises paradoxes so extreme, the democracies begin to appear to be using the tools of authoritarian regimes.

In addition to exposing the facts on the grounds, the article also makes two normative claims: First, it argues that secession reveals the ways in which both doctrines—the ban and eternity clauses—are inextricably intertwined. This assertion is general and goes beyond the secession context. Second, the article argues that secession is helpful in revealing the intricate relationship between constitution-making and constitution-amending powers. Even those who hold that the power to amend the Constitution should be treated as equal to the constitution-making power may find that an exception is needed in the secession context. Secession may be regarded as an annihilation of the Constitution because it redefines the sovereign bodies. As such, secession necessitates extra-constitutional mechanisms. Contrary to the prevailing understanding that it is sufficient to garner the support of the seceding population, secession may require the independent deliberate consent of two new peoples—the seceding as well as the remaining population.

Studying the delicate dance of constitutional democracies and secessionist movements not only enables a better understanding of constitutional law but may also shed new scholarly light on assumptions that Constitutions are generally silent about secession and may even implicitly allow it.

Number of Pages in PDF File: 34

Keywords: Secession, Self-determination, Group rights, Minority rights, Militant democracy, Intolerant democracy, Ban on political parties, Unconstitutional constitutional amendment, Eternity clause, Constitution-making Power, Constitutional amendment Power, Popular sovereignty, Sovereignty Referendums, Terri

Full text available at:
The Influence of English Courts on the Development of International Law

Antonios Tzanakopoulos 
University of Oxford - Faculty of Law

December 5, 2015

CONTEMPORARY PERSPECTIVES ON BRITISH INFLUENCES ON INTERNATIONAL LAW, Robert McCorquodale and Jean-Pierre Gauci, eds, Martinus Nijhoff Publishers, Forthcoming 

This contribution does not aim to quantify the influence of English courts on the development of international law, but rather to highlight their contribution in that development by focusing on important decisions on the law of immunity and on UN Law and the law of international organisations, and by referring to further notable decisions in other areas of international law. This is done against the background of an understanding of domestic courts as 'agents' of international law development through instigation, reaction, and approval, which is also explained in the paper.

Number of Pages in PDF File: 17

Keywords: domestic courts, international law and domestic law, avoidance techniques, incorporation, transformation, immunity, international organisations, development of international law
Full text available at:

martedì 10 novembre 2015

Singapore's Constitutionalism: A Model, But of What Sort?

Gordon Silverstein 
Yale University - Law School

October 26, 2015

Cornell Law Review, Vol. 100, 2015, p. 1 

A response to Prof. Mark Tushnet's article, "Authoritarian Constitutionalism" in 100 Cornell L. Rev. 391 (2015) agreeing that we need to think about constitutionalism as a spectrum and not a simple binary proposition, but asserting that there are three crucial dimensions to consider in constructing a typology of the varieties of constitutionalism. One would measure the degree to which power is limited and contained; a second would measure the degree and extent of popular consent and legitimacy behind the government, and a third would evaluate the procedures and process by which law is made and enforced - a measure of the rule of law divorced from deeper commitments to the ideals of liberal constitutionalism. The article asserts that we need to pay close attention to the difference between the requirements for a constitution-al state, and those for one that subscribes to constitutional-ism. The Republic of Singapore provides a compelling case study to illustrate these differences.

Number of Pages in PDF File: 23

Keywords: constitutionalism, rule of law, Singapore, authoritarian constitutionalism, comparative constitutionalism, comparative law

Full text available  at:

The Dark Side of Nudging: The Ethics, Political Economy, and Law of Libertarian Paternalism

Christopher McCrudden 
Queen's University Belfast - School of Law; University of Michigan Law School

Jeff King 
Faculty of Laws, University College London

November 3, 2015

Alexandra Kemmerer, Christoph Möllers, Maximilian Steinbeis, Gerhard Wagner (eds.), Choice Architecture in Democracies, Exploring the Legitimacy of Nudging (Oxford/Baden-Baden: Hart and Nomos, 2015), Forthcoming

Libertarian paternalism, as advanced by Cass Sunstein, is seriously flawed, but not primarily for the reasons that most commentators suggest. Libertarian paternalism and its attendant regulatory implications are too libertarian, not too paternalistic, and as a result are in considerable tension with ‘thick’ conceptions of human dignity. We make four arguments. The first is that there is no justification for a presumption in favor of nudging as a default regulatory strategy, as Sunstein asserts. It is ordinarily less effective than mandates; such mandates rarely offend personal autonomy; and the central reliance on cognitive failures in the nudging program is more likely to offend human dignity than the mandates it seeks to replace. Secondly, we argue that nudging as a regulatory strategy fits both overtly and covertly, often insidiously, into a more general libertarian program of political economy. Thirdly, while we are on the whole more concerned to reject the libertarian than the paternalistic elements of this philosophy, Sunstein’s work, both in Why Nudge?, and earlier, fails to appreciate how nudging may be manipulative if not designed with more care than he acknowledges. Lastly, because of these characteristics, nudging might even be subject to legal challenges that would give us the worst of all possible regulatory worlds: a weak regulatory intervention that is liable to be challenged in the courts by well-resourced interest groups. In such a scenario, and contrary to the ‘common sense’ ethos contended for in Why Nudge?, nudges might not even clear the excessively low bar of doing something rather than nothing. Those seeking to pursue a progressive politics, under law, should reject nudging in favor of regulation that is more congruent with principles of legality, more transparent, more effective, more democratic, and allows us more fully to act as moral agents. Such a system may have a place for (some) nudging, but not one that departs significantly from how labeling, warnings and the like already function, and nothing that compares with Sunstein’s apparent ambitions for his new movement.

Number of Pages in PDF File: 66

Keywords: choice architecture, behavioral economics, nudge, manipulation, autonomy, dignity

Full text available at:
From Strasbourg to Luxembourg? Transposing the Margin of Appreciation Concept into EU Law

Francisco Javier Mena Parras 
Université Libre de Bruxelles (ULB) - Institute of European Studies; Free University of Brussels (VUB) - Research Group Fundamental Rights & Constitutionalism

November 6, 2015

Centre Perelman de Philosophie du Droit Working Papers Series, Working Paper no. 2015/7 

This paper analyses the transposition into EU law of the well-known margin of appreciation concept as a tool to accommodate diversity. From the example provided by the European Court of Human Rights case law, the use of this technique by the Court of Justice of the European Union in the field of fundamental rights protection is discussed. The analysis is conducted by exploring the different legal context in which the Luxembourg court operates, as illustrated by the functions that it performs, both as a supreme and a federal constitutional court. Beyond some common elements, the different perspective of the Luxembourg court is reflected in some distinct features in the use of the margin of appreciation, as for instance the impact on the scope of the margin of appreciation of factors such as the existence or absence of a European consensus in the field, or the degree of harmonisation provided by EU law on the level at which Member States must protect the fundamental right concerned. Despite theses differences, there is a similar approach as compared to the use of margin of appreciation concept by the Strasbourg court, by the interconnection of the notions of consensus, harmonisation and subsidiarity in EU law. Given this background, this paper argues that the use of the margin of appreciation by the Court of Justice of the European Union can also be considered as a tool to accommodate diversity, in that sense that its use provides a balance between the respect of the EU constituent and legislator choices and those of the national authorities.

Number of Pages in PDF File: 26

Keywords: Court of Justice of the European Union, Discretion, Diversity, Federalism, Fundamental rights, Judicial review, Margin of appreciation, Subsidiarity

Full text available at:
Executive Federalism Comes to America

Jessica Bulman-Pozen 
Columbia University - Law School

November 6, 2015

Virginia Law Review, Vol. 102, 2016 

From healthcare to marijuana to climate change, negotiations among federal and state executive branch actors increasingly set national policy in the United States. This executive federalism fits uneasily into existing understandings: it departs from expectations that Congress formulates national policy and mediates state-federal relationships; it poses a challenge to popular suggestions that the president is engaged in unilateral action; and it comes as a surprise to those who have studied executive federalism but insist it is the peculiar province of parliamentary federations. In an age of partisan polarization, congressional gridlock, and state initiative, executive federalism has come to America.

After describing the emerging practice of American executive federalism and the collaboration and contestation it entails, this article offers a qualified defense. It suggests that executive federalism facilitates a form of governance suited to polarization: state-differentiated national policy. It argues that executive federalism offers a promising forum for bipartisan compromise because it involves iterative, relatively nontransparent interactions among disaggregated government actors. And it makes a case for executive federalism in terms of democratic representation notwithstanding obvious shortcomings. The article also questions some widespread doctrinal assumptions. In particular, it proposes that federalism might enhance, rather than diminish, federal agencies’ claims to Chevron deference, and it advocates judicial receptivity to federal executive involvement in interstate agreements.

Number of Pages in PDF File: 61

Keywords: federalism, separation of powers, polarization, partisanship, constitutional law, administrative law, Compact Clause, Chevron, Affordable Care Act, Clean Power Plan, Sauer v. Nixon, Common Core, marijuana, differentiated integration, representation, negotiation, administrative federalism

Full text available:

venerdì 6 novembre 2015

University of Milan, CALL FOR PAPER - Fundamental Rights Protection in Europe: Theory and Practice

CALL FOR PAPER - Fundamental Rights Protection in Europe: Theory and Practice

Submission Instructions

Interested scholars should email no more than one (1) abstract of max. 500 words by December 10, 2015 to the following address:

Notification and Participation Requirements

Successful applicants will be notified no later than December 30, 2015.


Please direct inquiries in connection with this workshop to Antonia Baraggia (Milan) by email at

Please circulate this Call for Papers widely.

giovedì 5 novembre 2015

International Conference, November 12th-13th, 2015 University of Florence "What budget, resources, fiscal and borrowing powers for the EU?""

International Conference, November 12th-13th, 2015  University of Florence  "What budget, resources, fiscal and borrowing powers for the EU?""

November 30th, 2015 Scuola superiore "Sant'Anna", Pisa Lo Stato “autonomico” spagnolo en la encrucijada: hechos diferenciales, tentativi di secessione e proposte di riforma

November 30th, 2015

Scuola superiore "Sant'Anna", Pisa

Anna Margherita Russo

Lo Stato “autonomico” spagnolo en la encrucijada: hechos diferenciales, tentativi di secessione e proposte di riforma

December 3rd, 2015 Scuola superiore "Sant'Anna", Pisa Germania: teorizzazione e crisi dello "Stato federale unitario"

STALS Seminar

December 3rd, 2015

Scuola superiore "Sant'Anna", Pisa

Giacomo Delledonne, Germania: teorizzazione e crisi dello "Stato federale unitario"

sabato 31 ottobre 2015

Call for papers: The Age of Austerity: A New Challenge for State Powers

Call for papers:

The Age of Austerity: A New Challenge for State Powers

The Europa Institute and the Edinburgh Centre for Constitutional Law are pleased to announce the call for papers for a workshop on state powers in the age of austerity, to be held at the University of Edinburgh on March 30th 2016.

The workshop seeks to examine how the powers of the state are affected, A) in cases where austerity measures are prescribed to national governments by supranational organisations and B) in cases where austerity measures are imposed by central governments to devolved or federal administrations in composite systems.

Further into at:

giovedì 29 ottobre 2015

M Alvarez Caro y M Recio Gayo, Hacia un acuerdo Safe Harbour renovado para la transferencia internacional de datos entre EE.UU y la UE.

Hacia un acuerdo Safe Harbour renovado para la transferencia internacional de datos entre EE.UU y la UE
M Alvarez Caro y M Recio Gayo, full text available at:

Ricardo Alonso García, Análisis crítico del veto judicial de la UE al CEDH en el Dictamen 2/13, de 18 de diciembre de 2014.

Análisis crítico del veto judicial de la UE al CEDH en el Dictamen 2/13, de 18 de diciembre de 2014. Ricardo Alonso García

Full text available at:

New Articles published in Perspectives on Federalism (just published in issue 2/2015)

Werner Vandenbruwaene, Patricia Popelier and Christine Janssens, "Article 260 TFEU Sanctions in Multi-Tiered Member States",

Márk Némedi, "Ne bis in idem: a separation of acts in transnational cases?", available at:

Tommaso Visone, "International Dictatorship or International Democracy. A Discussion of Albert Camus’ 1946 Considerations", available at:

Edward Grodin ,"An Internationally Intelligible Principle: Comparing the Nondelegation Doctrine in the United States and European Union", available at:

sabato 17 ottobre 2015

The Faceless Court

Angela Huyue Zhang 

King's College London – The Dickson Poon School of Law

September 19, 2015

This Article is the first to study EU competition law by examining the behavior of judges and their law clerks (officially entitled référendaires) at the Court of Justice of the European Union, against the unique institutional settings in Europe. The study is both quantitative and qualitative. It provides the most comprehensive and up-to-date analysis of the background of judges and advocates general appointed to the Court since 1952. It is also the first to provide a statistical analysis on the background of référendaires. As the background of référendaires is not publicly disclosed, I hand-collected data from LinkedIn and created a dataset of 103 former référendaires and 74 current référendaires working for the Court. The study also benefits from a field trip I conducted in May 2014 and extensive interviews with former and current members and staff at the Court.

The Article has several major findings. First, the quality of EU judges varies significantly, due to a lack of procedural safeguards for appointment and a high salary that attracts political appointees. As a consequence, some judges are dominated by their référendaires. Second, both judges and référendaires, especially those at the General Court, face increasingly heavy caseloads owing to a number of inherent institutional defects. This increases the pressure on judges and their référendaires to compromise quality for quantity. It also means that more work must be delegated to référendaires. Third, référendaires are drawn from a relatively closed social network due to the lack of an open platform for recruitment. The inefficiency of the référendaire labor market results in less competition, leading many référendaires to stay longer at the Court. Meanwhile, the French style of judicial formalism increases the value of career référendaires, who become powerful conservative forces that resist changes and reform. Fourth, the revolving door between the Court and the Commission helps the latter exert influence on the Court from the inside and gain a comparative advantage in litigation. Fifth, the French legal tradition, with its emphasis on empowering the State rather than protecting individual liberty, has a dominant influence on EU judges. Meanwhile, référendaires come from a relatively homogeneous background and most of them are Francophones trained in the French legal system. Sixth, the division of labor between the lower court and the higher court creates divergent incentive structures for judges and référendaires working at different levels. While a small group of judges and référendaires at the lower court have an incentive to modernize the formalistic case law by introducing more economic analysis, they are unable to do so as the ruling could be struck down by the higher court. At the same time, while the higher court is in a position to innovate, many judges and référendaires there lack the incentive to do so as competition policy is peripheral to the constitutional law debate.

This Article further sheds light on understanding why the differences between US antitrust law and EU competition law have persisted, despite powerful forces of globalization and convergence. As institutional change is path-dependent, evolution within each of these systems is only gradual. The Article thus suggests that such a divergence is likely to persist in the future. Achieving a sound understanding of the Court is the key to legal reform. The Article concludes by contributing to the ongoing debate about how to reform the Court.
Number of Pages in PDF File: 56

Keywords: judicial behaviour, EU law, competition, antitrust, judges, legal tradition, path dependence, institution

lunedì 12 ottobre 2015

 How Much Better is Better Regulation?
Assessing the Impact of the Better Regulation Package on the European Union – A Research Agenda

Alberto Alemanno 
HEC Paris; NYU School of Law

October 11, 2015

European Journal of Risk Regulation, Issue 3, 2015 (forthcoming) 

Emboldened by the Spitzenkandidaten process, the new European Commission emerges as the most political yet. The Commission asks EU citizens to judge its operation by its ability ‘to deliver solutions to the big issues that cannot be addressed by the Member States alone’. The Better Regulation Package translates this political commitment into an actionable approach assuring EU citizens that the Commission will remain ‘big on big things, small on small things’. To deliver on this promise, the Commission extends the Impact Assessment system, renews its consultation procedures and adds a few institutional mechanisms so as to enhance its ‘ability to deliver’ throughout the policy cycle. But in order to do so the Commission needs to bind – and somehow control – the European Parliament and the Council, on the one hand, and the Member States, on the other, in relation to their commitment to openness, participation and evidence-based policymaking. While legitimate, this attempt raises serious doubts about the compatibility of this reform with the principle of separation of powers and, in particular, that of institutional balance. 

A closer look at the Better Regulation Package reveals an entirely new understanding of the Commission’s own prerogatives and the way it intends to exercise its legislative and regulatory powers. And this in spite of the apparent continuity between the new and old Better Regulation initiatives and the instruments it had chosen to attain the declared objectives. 

With a view to lay out a future research agenda on EU Better Regulation, this article identifies the most immediate questions raised by the publication of the Package and makes a first timid attempt at addressing some of them. It aims at determining how much better, if any, is the new Better Regulation Package. It does so by discussing, first, the major novelties enacted by the Commission within its own Better Regulation system and, second, those proposed in the framework of the Interinstitutional Agreement on Better Regulation.

Number of Pages in PDF File: 24

Keywords: Regulatory reform, Better Regulation, Regulatory Scrutiny Board, Impact Assessment, REFIT, CBA, comparative institutional analysis, trilogues, trialogues, TTIP,

Full text available at:

venerdì 9 ottobre 2015

Call for papers "Bicameralism under Pressure: Constitutional Reform of National Legislatures"

2-3 May 2016, Global Symposium in Memory of Gabriella Angiulli on the topic "Bicameralism under Pressure: Constitutional Reform of National Legislatures". Deadline for submitting an abstract: 30 November 2015.

A Global Symposium in Memory of Gabriella Angiulli

Bicameralism under Pressure:
Constitutional Reform of National Legislatures
LUISS Guido Carli University
Viale Romania 32
Rome, Italy
Monday and Tuesday, May 2 and 3, 2016
Presented by

The Center for Parliamentary Studies, LUISS Guido Carli University of Rome
in cooperation with
The University of Milan, Department of National and Supranational Public Law
The International Society of Public Law (ICON-S)
The Younger Comparativists Committee (YCC), American Society of Comparative Law

Convened by
Cristina Fasone
Antonia Baraggia
Richard Albert 

venerdì 2 ottobre 2015

Trust, Social Capital and Networks: A different perspective on Intertional Courts - Call for papers

Taken from

iCourts Call for Papers: 4-5 February 2016, Copenhagen, Denmark Trust, Social Capital and Networks: A Different Perspective on International Courts (pdf)

Organised by iCourts, Centre of Excellence for International Courts.

The workshop, which will take place in February 2016 at iCourts, University of Copenhagen, aims to provide participants with the opportunity to think through and develop a new research agenda on social capital, networks and trust to be applied to understand International Courts and legal regimes.

While concepts of social capital, networks and trust are increasingly used in the study of International Courts and Law, the discipline still lacks a systematic analysis of the role, limits and uses of these concepts for the study of International Courts (ICs). The current discussions of trust, social capital and networks have evolved in separate spheres, circumscribed to a specific court or legal institution. This situation shows a fragmented conceptualization, preventing the creation of common conceptual frameworks, which could promote mutual understanding and exchanges among scholars in the field.

iCourts, committed to the promotion of the interdisciplinary perspective in the area of International Courts and Law, is inviting participants from several disciplines with an interest in International Courts to a high-level interdisciplinary discussion of the topic. This would allow for cross-fertilization, exchange of opinions and knowledge between the academics but also for the critical assessment of the new tools which the scholars use to scrutinize these concepts in the context of ICs. By doing this, the workshop will hopefully contribute to a wide-ranging discussion. This includes not only general theoretical approaches and concepts but also comparative and specific case studies based on original and innovative empirical evidence of how these concepts are or can be applied to several international courts and legal regimes (e.g. International Criminal Court, European Court of Justice, European Court of Human Rights, WTO dispute settlement system, arbitration bodies, and national courts, among others).

In order to frame the debate and papers, we ask paper-givers to reflect about: To what extent are these concepts applicable for the study of ICs? Can we agree on a common definition of these terms? How can these concepts help to explore the dynamics behind the creation, empowerment and legitimization of ICs in the global and domestic context and its success? Which empirical indicators are useful to investigate trust, social capital and networks in ICs? And, finally, how these new theories and concepts might contribute or challenge our current understanding of international courts and/or scholarship?

The conference will include papers presented by invited participants, as well as papers selected in the course of the present call for papers. We will seek to publish a selection of the papers in a special journal issue or book.

Paper submission
The workshop will be open to new participants PhD researchers, junior and senior scholars from international institutions working on this topic with an empirical approach. The papers should deal with specific topics related to the overall theme “Trust, social capital and networks in International Courts”. The selection will seek to ensure a balanced representation of the various ICs across the glove, disciplines (sociology, law, political science, etc.) and methods. – The proposal (approx. 300 words) should be submitted by the 15th of October 2015 and include:

Title of the paper
Research question
Methodology and data
Expected findings
The proposals should be submitted with curriculum vitae of the author/s to Juan A. Mayoral –

Authors of selected papers will be offered accommodation in a hotel in Copenhagen; lunches and coffee breaks will be covered for all the participants by iCourts.

giovedì 1 ottobre 2015

STALS Newsletter September 2015

Dear friends and colleagues,

we are pleased to announce the contents of this new STALS newsletter.

STALS Research Paper
G. Martinico, “Constitutionalism, Resistance and Openness: Comparative Law Reflections on Constitutionalism in Global Governance”, STALS Research Paper 5/2015,

Book Symposium
G. Delledonne- J. Pinheiro Faro Homem de Siqueira (eds.), “The Tangled Complexity of the EU Constitutional Process': A Symposium”,

STALS events
5 October 2015
Francisco Pereira Coutinho
“Austerity under scrutiny: the case law of the Portuguese Constitutional Court in times of crisis”

13 October 2015
Filippo Fontanelli
“The mythology of proportionality in the constitutional case-law of the Court of Justice of the EU” 

27 November 2015
Aida Torres Pérez
“Levels of rights' protection: the Charter as a floor and a ceiling?”

All the best from Pisa,

the Editors

sabato 26 settembre 2015

Constitutional Courts in Latin America: A Testing Ground for New Parameters of Classification?

Justin O. Frosini 

Bocconi University - Department of Law; Johns Hopkins University - Bologna Center

Lucio Pegoraro 

University of Bologna - Department of Political and Social Sciences

June 6, 2008

J.O. Frosini, L. Pegoraro, Constitutional Courts in Latin America: A Testing Ground for New Parameters of Classification? in Journal of Comparative Law 3:2, 39-63
A. Harding, P. Leyland (eds), Constitutional Courts. A comparative study, Wildy, Simmonds and Hill, 2009 

Attempting to classify the constitutional adjudication systems in Latin America is by no means an easy task given the ‘creativity’ that has been used in developing them. Very rich and diverse approaches have been taken and one would commit a gross generalisation if one were to talk of a ‘Latin American model of constitutional justice’. In many respects the object of this research poses a challenge that comparatists are typically faced with: on one hand, the need to avoid oversimplified classifications as these would not meet the aim of providing a precise picture of the legal institutions that are the object of study, on the other, the necessity of also avoiding classifications that are too detailed as these would risk thwarting the very aim of classifying i.e. to group together on the basis of similarities taking into account the differences the components of a certain group might bear to one another.
Number of Pages in PDF File: 25

Keywords: Latin America, Constitutional Courts, Constitutional Review, Comparative Law, Classifications

mercoledì 9 settembre 2015

The Contribution of Anthropology to Teaching Comparative and International Law

Francis Snyder 

Peking University School of Transnational Law, Shenzhen Graduate School, China; CERIC, Aix-Marseille University; College of Europe, Bruges

September 5, 2015

The Trials and Triumphs of Teaching Legal Anthropology (eds. Foblets, Woodman and Bradney) (Ashgate, 2015) 

Anthropology has a distinct and essential role to play in teaching comparative and international law. This argument underlies the present paper, which is based mainly on teaching law to undergraduates and postgraduates in several European countries but also draws on my experience in other countries, notably China. Through a series of examples, I also hope to demonstrate that anthropology should never be parochial. Here I use the term ‘parochial’ in three senses : first, being limited in its empirical foundations to particular countries or parts of the world ; second, being understood to be relevant only to domestic law, whether national law or European Union (EU) law, and not to comparative and international law ; and third in the sense that teachers of law or anthropology in Europe have nothing to learn from their colleagues in other countries. The paper suggests that we need to reject parochialism in these three senses. Anthropology is par excellence a widely shared discipline.
Number of Pages in PDF File: 11

Keywords: anthropology, legal anthropology, comparative law, international law, Africa, EU law, WTO law, China

Free Speech Paternalism and Free Speech Exceptionalism: Pervasive Distrust of Government and the Contemporary First Amendment

Ronald J. Krotoszynski Jr. 

University of Alabama - School of Law

June 1, 2015

Ohio State Law Journal, Vol. 76, 2015
U of Alabama Legal Studies Research Paper No. 26557000 

The United States observes a profound constitutional commitment to safeguarding expressive freedoms, including speech, press, assembly, petition, and association rights secured under the First Amendment. However, when viewed from a global perspective, the American position of affording near-absolute protection to speech is strongly exceptionalist. Other polities, sharing strong constitutional commitments to respect the freedom of speech, do not view government efforts to regulate speech based on its content or viewpoint as presumptively invalid. In such places, government efforts to shape the marketplace of ideas through regulation are seen as fully
consistent with a broader legal commitment to respecting expressive freedom. Two recent books, one by Professor Martin Redish and the other by Professor Timothy Zick, help to shed important light on this conflict between free speech paternalism and free speech exceptionalism. Read in tandem, the books help to explain why the United States approach to defining and protecting freedom of expression constitutes a global anomaly. This Essay argues that free speech exceptionalism in the United States is best understood as a logical outgrowth of broader social, cultural, and historical factors. In particular, United States free speech exceptionalism arises from a longstanding and pervasive distrust of government and its institutions, a form of distrust that simply does not exist in most other nations. These books also illuminate an important, and curious, exception to this general distrust of government speech regulations in the United States: transborder speech. The constitutional protection of speech should not rest on an accident of geography; simply put, distrust of government speech regulations should not end at the water’s edge. Accordingly, transborder speech merits greater constitutional solicitude and protection than it generally enjoys at present.
Number of Pages in PDF File: 33

Keywords: constitutional law, separation of powers, free speech, hate speech, distrust, democracy, dissent, low value speech, democratic deliberation, first amendment, expressive freedom, comparative law, privacy, dignity, Germany, United States, autonomy, transnational judicial dialogue, Meiklejohn

Rethinking the Context of Hate Speech (Book Review: Michael Herz & Peter Molnar, The Content and Context of Hate Speech: Regulation and Responses (Cambridge University Press 2012))

Robert A. Kahn 

University of St. Thomas School of Law (Minnesota)


First Amendment Law Review, 2015, Forthcoming
U of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-20 

Can hate speech regulation become fun again? Current hate speech regulation often devolves into a sterile debate between libertarian Americans and censorious Europeans over whose approach to hate speech is better. A series of cutting edge essays by Michael Herz and Peter Molnar’s 2012 volume (eds.) The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press 2012) points the way forward. It does this by challenging the commonly held premise that the United States does not punish hate speech. Instead, as many of the authors show, the United States does punish such speech – only it does so outside the formal legal system through “social sanctions” such as public condemnation of hate speakers and public based shunning. The nuanced approach to hate speech regulation will only become more important as the debate over hate speech shifts to the world of social media. At the same time, the book as a whole suggests an emerging global consensus around the idea that hateful speech can be punished if it incites violence. While the jury is still out on the extent, necessity and feasibility of this emerging consensus, the Herz and Molnar volume gives us the tools to explore these important issues.
Number of Pages in PDF File: 25

Keywords: freedom of speech, hate speech, comparative law, convergence vs. exceptionalism, informal sanctions, American and social media

A Right to Die? A Comparative Legal Philosophical Enquiry

Cosmas Emeziem 

Cornell University, Law School, Students

August 27, 2015

Man is a living being. But in the midst of life death is a reality. The antithesis of life is death. Hence many a thinker over the ages have sought to depict it in several forms. It is a ‘necessary end that will come when it will come’; yet the desire to live is the most defining impulse of humankind. It would appear that the desired living is also a living in dignity and happiness. Little wonder then that in every land and clime, life is intrinsically valuable and the essence of society is to sustain it. Sometimes however, we encounter situations where human beings contrary to the ordinary flow of existential perceptions desire on their own to die. They crave death because to them life has lost its meaningfulness. They seek to determine definitively the end of life. Some of them now assert that the right to take that decision is an inherent aspect of the human right to life. How true is this assertion? In this work it is sought to briefly examine the issue of death as a right and how it has been seen around different jurisdictions of the world using specific apex court decisions to do so. The work will also seek to show the different jurisprudence dispositions adopted by judges in disposing the cases that touch on this issue. The arguments for and against elicited will be highlighted using the different schools of legal philosophy as the mirror. It will be seen that the judges are rather most circumspect and appear generally unsure footed hence they prefer to keep the status quo. It will comparatively draw inspiration from other philosophical writings relevant to the work in other to give it the required comparative breadth.

Number of Pages in PDF File: 20

The International Law of Game of Thrones

Perry S. Bechky 

International Trade & Investment Law PLLC; Seattle University School of Law

August 28, 2015

Alabama Law Review Online, Vol. 67, No. 1, 2015 

Game of Thrones depicts a violent and, some might say, lawless world. Few would think that world evidences much international law. Yet, this article identifies several rules of international law observable on the show and relates them to real-world international law. Observable rules include some fundaments of the law of treaties, customary norms, and (most surprisingly) at least one humanitarian peremptory norm. These rules cover a range of subjects, including sovereignty, state responsibility, jurisdiction, immunities, and human rights. The article also discusses the special legal status of the Night’s Watch, which is governed by the most important legal “text” in Game of Thrones. Finally, the article tries to have some fun.
Number of Pages in PDF File: 16

Keywords: Game of Thrones, public international law, human rights, treaties

Revolutionary Constitutionalism

Stephen Gardbaum 

University of California, Los Angeles (UCLA) - School of Law

August 26, 2015

UCLA School of Law Research Paper No. 15-26 

One important recent trend in constitution-making around the world has been revolutionary constitutionalism: using the constitution-making process to attempt to institutionalize and bring to a successful conclusion a political revolution. Although a good deal of attention has been paid to the specific revolutions involved, there has been far less on the general phenomenon ofrevolutionary constitutionalism as such. This article attempts to begin redressing this gap by offering some reflections on the general phenomenon and then employing them to inform an analysis of constitution-making in the revolutionary context.

The article makes three main claims. The first is that revolutionary constitutionalism is a useful and illuminating category for the discipline of comparative constitutional law. Empirically, it encompasses a range of situations that implicate constitutionalism in a particular way and raise special challenges. Analytically, it is a distinct concept from the neighboring term "constitutional revolution." Recognizing this permits us to distinguish, for example, the American Revolution from the New Deal constitutional revolution in qualitative terms, as different in kind and not merely degree. The second is that revolutionary constitutionalism contains within itself certain paradoxes and practical problems that have their source in the combination of initial radical transition and subsequent resistance to further radical change that constitutionalization brings. The final claim concerns the role and importance of constitution-making in the revolutionary context. Although relative to a broad array of socio-political variables, this role is generally less central to the ultimate outcomes of revolutionary constitutionalism than constitutional lawyers often think, it can respond to one distinctive challenge: the need to re-establish political authority lost by the old regime. As the comparison between recent experiences in Egypt and Tunisia suggests, constitution-making can make a key contribution here as one source of the legitimacy that the new regime must acquire.
Number of Pages in PDF File: 42

Keywords: revolutionary constitutionalism, constitutional revolution, constitutionalism, American Revolution, Arab Spring, constitution-making

giovedì 3 settembre 2015

Friday 25 September 2015 - Saturday 26 September 2015. Institute of European and Comparative Law General Principles of Law: European and Comparative Perspectives. Celebrating 20 Years of the Institute of European and Comparative Law.


"‘General principles of law’ are one of the most visible areas of intersection between EU law and comparative law: as long as they are understood as ‘the general principles common to the laws of the Member States’ (Art 340(2) TFEU) their fleshing out requires careful comparative preparatory work. True, more often than not, the general principles of EU law were not developed on the basis of thorough and textbook style analysis. This does not make it less interesting to look at the interaction of EU law and comparative law in this particular field. Those working together in elaborating general principles of EU law tend to be responsive to input from national laws, and the laws of the Member States have no choice but to be responsive to the general principles developed at EU level.

It is the purpose of this conference to look at this particular interaction from the perspectives of EU law and comparative law alike. Leading scholars and practitioners from both fields will come together to discuss the most recent developments in the field.

There will be one general (assembly) session exploring the theoretical and conceptual issues surrounding the notion of ‘general principles of EU law’ and two thematic sessions looking at specific examples of how these principle operate in practice. One session will chart how a well-established general principle, the principle of proportionality, has been implemented in the laws of the member states: is there ‘a’ general principle of proportionality, or are there 27 (or: 29) principles? Another session will be devoted to the emergence of two general principles of EU law in private law, party autonomy and the protection of the ‘weaker’ party, and will focus on the difficulties that arise when these principles conflict. Finally, there will be another assembly session on the legitimacy of judicial creation of general principles of law.

In keeping with the distinctive brand of scholarship promoted by the Oxford Institute, each topic will be addressed by both EU and comparative lawyers. Both perspectives will be given equal weight, and the focus will be on the interactions. And of course we aim to look at all the issues within their broader historical, jurisprudential and political context.

The conference will be held on the occasion of the twentieth anniversary of the Oxford Institute. It will bring together current and former members, visitors and friends of the Institute, as well as those who might belong to one of these categories in the future. Celebration will be an essential part of the proceedings!"

Full programme here:

Further info:

Integrating Europe. Competing paradigms for EU law. Conference University of Antwerp. 24 September 2015

Integrating Europe. Competing paradigms for EU law

University of Antwerp, Law School

24 September 2015
StadsCampus, C.002

Integrating Europe. Competing paradigms for EU law


9.30-9.45 Introduction
Gert Straetmans (University of Antwerp) and Marta Simoncini (University of Antwerp and King’s College London)

9.45-10.30 Key Note Speech
Peter Lindseth (University of Connecticut), Paradigms, Paradoxes, and Contradictions in EU Public Law

10.30-11.00 Coffee break

11.00-12.00 Panel I: Questioning paradigms
Chair: Patricia Popelier (University of Antwerp)
Giuseppe Martinico (Scuola Sant’Anna, Pisa), Openness between Constitutionalism and Pluralism. The Case of EU Law
Marta Simoncini (University of Antwerp and King’s College London), EU Law and the Limits of Delegation. The Case of EU Agencies

12.00-13.45 Lunch and refreshments

13.45-14.45 Panel II: Paradigms and the economic crisis
Chair: A.-M. Van den Bossche (University of Antwerp)
Federico Fabbrini (University of Copenhagen), The Euro-crisis and Constitutional Change: The Implications of the EMU Reform on Balance of Powers in the EU
Werner Vandenbruwaene (University of Antwerp), Competing Trends in Financial Law and Policy: Integration and Differentiation

14.45-15.45 Panel III: Paradigms for consumer protection in EU law
Chair: Gert Straetmans (University of Antwerp)
Marjia Bartl (University of Amsterdam), Wavering Legitimacy of European Private Law
Geraint Howells (City University of Hong Kong), The Balance between Private Law and Administrative Protection for Consumers

15.45-16.15 Coffee break

16.15-17.15 Panel III: Paradigms for EU external relations
Chair: Alexia Herwig (University of Antwerp)
Peter Van Elsuwege (University of Ghent), The Constitutional Approach to EU External Relations: An Analysis of the Post-Lisbon Practice
Christina Eckes (University of Amsterdam), Common Foreign and Security Policy: Judicial Review and its Costitutionalising Consequences

17.15-17.45 Round session: discussion
19.00 Social dinner

I-CONnect Video Interview Series: Italian Constitutional Law, Featuring Cristina Fasone

Taken from:

"An interview with Cristina Fasone of the European University Institute and LUISS Guido Carli University on developments in Italian constitutional law. The interview is conducted by Richard Albert, co-editor of I-CONnect and constitutional law professor at Boston College Law School."

Full interview here:

I-CONnect Video Interview Series: French Constitutional Law, Featuring François-Xavier Millet

Taken from:

"An interview with François-Xavier Millet of the University of the French West Indies on developments in French constitutional law. The interview is conducted by Richard Albert, co-editor of I-CONnect and constitutional law professor at Boston College Law School."

Full interview available at:

martedì 25 agosto 2015

When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach

Mathilde Cohen 

University of Connecticut - School of Law


Washington and Lee Law Review, Vol. 72, 2015 


Influential theories of law have celebrated judicial reason- giving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in adjudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reason- giving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between reasons for and against reason-giving in increasingly similar ways.

By combining theories of democratic legitimacy with empirical, doctrinal, and historical evidence of judges’ concrete reason-giving practices in the United States and Europe, the Article argues that rather than being in opposition, these two legal cultures are converging toward a common methodology. No longer can it be assumed that civil law judges and common law judges are on opposite ends of the spectrum.

The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada

Richard Albert 
Boston College - Law School; Yale University - Law School

August 23, 2015

41 Queen's Law Journal (2016 Forthcoming) 

It has become increasingly common for courts in constitutional democracies to invalidate constitutional amendments. Courts have enforced both written and unwritten limits on how political actors may exercise the formal amendment power. They have relied either on constitutional texts that expressly entrench provisions against formal amendment or on their own interpretation of these texts as implicitly establishing an unalterable constitutional core. Although the Supreme Court of Canada has not yet invalidated a constitutional amendment, modern case law provides the constitutional basis for the Court to declare that a future constitutional amendment violates either the text or spirit of the Constitution of Canada. In this Article, I trace the origins and evolution of the theory and doctrine of unconstitutional constitutional amendment, I explain how the theory and doctrine may apply today in Canada, and I suggest a detailed framework to evaluate when and how the Supreme Court of Canada may exercise the extraordinary residual constitutional authority to invalidate a constitutional amendment.

Keywords: Constitutional Amendment, Unconstitutional Constitutional Amendment, Basic Structure Doctrine, Formal Amendment, Informal Amendment, Constitution of Canada, Indian Constitution, Amendment Difficulty, Supreme Court of Canada, Constitutional Interpretation

Full text available at: