lunedì 27 aprile 2015

MWP Multidisciplinary Research Workshop Series
Lunch Workshop
Seminar Room 2 – Badia Fiesolana
Via dei Roccettini, 9 – San Domenico di Fiesole
Friday 8 May 2015, h. 14.00-16.00
Organiser: Cristina Fasone (EUI, Max Weber Programme)
“Constitutions: How They Change and Evolve Through Institutional Practice”
What role do Constitutions play in national and supranational polities? How do they evolve over time? This workshop aims to discuss, in a comparative and EU perspective, issues like the legitimacy of constitutional amendments and their limits, the actors who drive constitutional change, the constitutional nature of conventions, the relationship between politics and Constitutions and the actual functioning of institutions despite formal rules.

(14.00-14.40) Speakers:
Richard Albert (Boston College Law School; Yale University,2015-16) – How Unwritten Constitutional Norms Change Written Constitutions
Thomas Beukers (Dutch Ministry of Foreign Affairs; EUI, Law Department) – The Desirability of Constitutional Conventions in the EU: the Case of the Commission Investiture

(14.40-15.10) Discussants:
Tania Groppi (University of Siena, Department of Business and Law)
Paolo Ponzano (EUI, Robert Schuman Centre for Advanced Studies)
Giovanni Piccirilli (LUISS Guido Carli, Centre for Parliamentary Studies)

(15.10-16.00) Q&A and debate

Cristina Fasone


domenica 26 aprile 2015

Brands, Morality and Public Policy: Some Reflections on the Ban on Registration of Controversial Trademarks

Enrico Bonadio 

City University London - The City Law School

March 1, 2015

Marquette Intellectual Property Law Review, Vol 19, No 1, 2015 

Commercial enterprises in several industries are increasingly using aggressive marketing strategies to attract and keep customers. Amongst these strategies, the choice of the “right” brand is obviously key — and trademarks are sometimes chosen that aim at shocking existing and potential customers, especially youngsters.

Yet, attempts to register controversial trademarks are likely to encounter legislative obstacles. Indeed, several international, regional, and national legislations prohibit the registration of scandalous trademarks and, in general, signs that are against morality and public policy.

The paper delves into thorny issues surrounding the registration of these trademarks in several jurisdictions including the United States, United Kingdom, European Union, and Australia. It argues, in particular, that the bans on registration of such signs are necessary to push brands out of the market that offend the most basic values of our society and the rights of vulnerable groups. This is true even if the prohibition in question does not actually prevent traders from using the unregistered, immoral, or scandalous sign: the ban at issue is indeed still capable of discouraging its use.

The article also highlights the relationship between the ban in question and legislation that protects commercial free speech.
Number of Pages in PDF File: 24

Keywords: Trademarks, morality, order public, commercial free speech

The Egyptian Second Republic: The Future of Litigating Islam Before the Supreme Constitutional Court

Adham A. Hashish 

Alexandria University Faculty of Law

June 9, 2013

Berkeley Journal of Middle Eastern & Islamic Law, Volume 5, Issue 1, 4 (2013) 

This article explores the future of litigating Islam in the Egyptian Second Republic. In particular it discusses the role that the Supreme Constitutional Court of Egypt can play in paving the way for a pluralistic understanding of Islam after the Arab Spring. While reviewing the constitutionality of the legislation, the Court’s interpretation of the Shari’a Clause and how it will affect the legal system will be vital in defining the relationship between Islam and the state and what role Islam will play in the public sphere. This article explores how litigating Islam before the SCC will reveal a form of governance that is neither secular (as in Turkey) nor theocratic (as in Iran). Rather, it will reveal a civic state with an Islamic identity that is based in Intell-political Islam rather than theo-political Islam.
Number of Pages in PDF File: 47

Keywords: Sharia, Islamic Law, Constitution, Egypt, Arab Spring, Comparative and Foreign Law, Law and Society, Religion Law, Supreme Court, Political Islam

Constitutional Amendment by Stealth

Richard Albert 

Boston College - Law School

April 2, 2015

McGill Law Journal, Vol. 60, 2015 Forthcoming
Boston College Law School Legal Studies Research Paper No. 357 

Constitutional amendment ordinarily channels public deliberation through formal, transparent and predictable procedures designed to express the informed aggregated choices of political, popular and institutional actors. Yet the Government of Canada’s proposed senator selection reforms concealed a democratically problematic strategy to innovate an informal, obscure and irregular method of constitutional amendment: constitutional amendment by stealth. There are three distinguishing features of constitutional amendment by stealth — distinctions that make stealth amendment stand apart from other types of informal constitutional change: the circumvention of formal amendment rules, the intentional creation of a convention, and the twinned consequences of both promoting and weakening democracy. Constitutional amendment by stealth occurs where political actors consciously establish a new democratic practice whose repetition is intended to compel their successors into compliance. Over time, this practice matures into an unwritten constitutional convention, and consequently becomes informally entrenched in the constitution, though without the democratic legitimacy we commonly associate with an amendment. In this Article, I theorize constitutional amendment by stealth from legal, theoretical and comparative perspectives, and consider its consequences for the rule of law.
Number of Pages in PDF File: 47

Keywords: Constitutional Amendment, Formal Amendment, Informal Amendment, Constitutional Convention, Senate Reference, Senate Reform, Comparative Constitutional Law, Constitution of Canada, United States Constitution

Human Rights Histories

Christopher McCrudden 

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

April 3, 2015

Oxford Journal of Legal Studies, Forthcoming
U of Michigan Public Law Research Paper No. 448
Queen's University Belfast Law Research Paper No. 08 

This review article considers Samuel Moyn’s book The Last Utopia: Human Rights in History in the context of recent trends in the writing of human rights history. A central debate among historians of human rights, in seeking to account for the genesis and spread of human rights, is how far current human rights practice demonstrates continuity or radical discontinuity with previous attempts to secure rights. Moyn’s discontinuity thesis and the controversy surrounding it exemplify this debate. Whether Moyn is correct is important beyond the confines of human rights historiography, with implications for their meaning in law, as well as their political legitimacy. This review argues that Moyn’s book ultimately fails to convince, for two broad reasons. First, a more balanced judgment would conclude that the history of human rights is both one of continuity and discontinuity. Second, and more importantly, Moyn fails to offer a convincing account of the normativity of human rights. Undertaking a history of human rights requires a deeper engagement with debates on the nature and validity of human rights than Moyn seems prepared to contemplate.
Number of Pages in PDF File: 43

Keywords: human rights, human dignity, constitutional rights, international human rights, legal history

Transnational Culture Wars

Christopher McCrudden 

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

April 3, 2015

I.CON International Journal of Constitutional Law, Forthcoming
U of Michigan Public Law Research Paper No. 447
Queen's University Belfast Law Research Paper No. 09 

The well-known “culture wars” clash in the United States between civil society actors has now gone transnational. Political science scholarship has long detailed how liberal human rights non-governmental organizations (NGOs) engage in extensive national and transnational activity in support of their ideals. More recently, US conservative groups (including faith-based NGOs) have begun to emulate these strategies, in particular promoting their convictions by engaging in transnational advocacy. NGOs thus face off against each other politically across the globe. Less well known is the extent to which these culture wars are conducted in courts, using conflicting interpretations of human rights law. Many of the same protagonists, particularly NGOs that find themselves against each other in US courts, now find new litigation opportunities abroad in which to fight their battles. These developments, and their implications, are the focus of this article. In particular, the extent to which US faith-based NGOs have leveraged the experience gained transnationally to use international and foreign jurisprudence in interventions before the US Supreme Court is assessed.
Number of Pages in PDF File: 36

Keywords: human rights, comparative law, transnational law, non-governmental organizations, religion, citation of foreign judgments

Post Doc Vacancies Scuola Sant'Anna Pisa

Assicurare il diritto all'acqua in situazioni di disastro: un'analisi del quadro regolatorio e istituzionale internazionale Settore concorsuale  Settore concorsuale 12/E3 -DIRITTO DELL’ECONOMIA E DEI MERCATI FINANZIARI ED AGROALIMENTARI Settore scientifico disciplinare  Settore scientifico disciplinare IUS/03 -DIRITTO AGRARIO

L'impatto degli art. 3 e 8 del Trattato sulla stabilità, coordinamento e governance nell'unione economica e monetaria (c.d. Fiscal Compact) sulle tecniche decisorie della Corte di giustizia e di alcune Corti costituzionali nazionali Settore concorsuale  Settore concorsuale 12/E2 -DIRITTO COMPARATO Settore scientifico disciplinare  Settore scientifico disciplinare IUS/21 -DIRITTO PUBBLICO COMPARATO

Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared

Christopher McCrudden 

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


Cambridge Yearbook of European Legal Studies, 2012-2013, Volume 15
U of Michigan Public Law Research Paper No. 449 

This chapter examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.
Number of Pages in PDF File: 36

Keywords: European Court of Human Rights, Court of Justice of the European Union, comparative law, human rights, citation of foreign judgments


Full program here:

Comparative Urban Governance for Lawyers

Fernanda Nicola 

American University - Washington College of Law

Sheila Foster 

Fordham University School of Law

October 1, 2014

Fordham Urban Law Journal, Vol. 42, No. 1, 2014
Fordham Law Legal Studies Research Paper No. 2592735 


This essay is an introduction to a set of papers that were developed for a joint session of the Sections on State and Local Government and Comparative Law for the 2014 Annual Meeting of the American Association of Law Schools. The theme of the joint session was Comparative Urban Governance.

This introductory essay begins to fill what we perceive as a prominent gap existing in the local government and comparative law literature. Even though economic globalization has shaped the ways in which cities are governed, local government legal scholars have only recently begun to contribute to the growing field of Comparative Urban Governance (CUG), which has largely been dominated by comparative political theorists, urban planners, and economists committed to best practices for urban growth and modernization. Importantly, local government legal scholars have identified and analyzed the emergence of cities, including transnational networks of cities, as critical actors on the international legal stage, shaping global legal norms and the implementation of international laws around the world. However, comparative analysis by legal scholars (and practitioners) of similar legal rules and policies adopted by cities around the world, although not uncommon, most often fail to really engage methodological questions underlying such comparisons.

The task to compare local government law is not only daunting because of the extreme variation among local governments, but also because there is the perception that such comparison is of lesser relevance when comparative legal scholars have traditionally focused on states, constitutions, or geographic regions. Indeed, comparing the policies and practices of local governments may very well require its own mode of analysis. Our aim is to sketch out a methodological framework for lawyers and legal scholars seeking to understand or contribute to this growing field of expertise In undertaking this project, we realize that the relevant methodological insights for lawyers and scholars approaching CUG derive from various legal disciplines. In particular, there are at least three legal fields that offer insights, as well as illuminate shortcomings, for those who engage in CUG: local government law, comparative law, and the law of international economic development. This introductory essay explains the relationship between CUG and these distinct legal fields through the rich contributions of the papers in this volume, each of which offers an innovative and thoughtful approach that links different strands of local government law, comparative law, and international economic development scholarship, while offering a rich menu for urban reformers committed to rethinking sustainability and democratic inclusion as integral parts of economic development strategies for cities.

Full text available at:

Interdisciplinary Comparative Law - Between Scylla and Charybdis?

Jaakko Husa 

University of Lapland - Faculty of Law

April 1, 2015

The Journal of Comparative Law 9 (2014) 28-42. 

Even while interdisciplinary approach and comparative law are conceived as a perfect match there are also certain risks. Lawyers are not normally competent sociologists, linguists, economists, anthropologists, historians etc. When a lawyer steps outside of the boundaries of law, the risk of misunderstanding concepts or methods taken from other fields may materialize. However, many of the most pressing problems we see at the moment arise from the reverse situation; that of non-lawyers venturing outside their own specialist field into comparative law. This article looks into just two scenarios where the interdisciplinary approach seems, at first glance, to be an almost perfect methodological solution but more detailed scrutiny reveals something different. The first scenario concerns macro-comparative law and the so-called ‘legal origins’ theory, and the second concerns micro-comparative law and legal linguistics.
Number of Pages in PDF File: 14

Keywords: Interdisciplinary Study, Comparative Law, Methodology

venerdì 10 aprile 2015

Robert Schütze, European Union Law, 2015

(taken from

Written with exceptional clarity, European Union Law constitutes a classic textbook for students and practitioners of European law. Using a clear structural framework, it guides readers through all the core constitutional and substantive topics of EU law, and provides in-depth coverage of the most important internal and external policy areas of the European Union. Extracts from classic case law are complemented with extensive and critical discussion of the theoretical and practical aspects of the European Union and its law, leading students to a deep understanding of the subject. Chapters are enriched with more than 100 colour figures and tables, which clarify complex topics and illustrate relationships and processes. Suggestions for further reading direct students to significant pieces of academic literature for deeper self-study, and a companion website with full 'Lisbonised' versions of the cases cited in the text completes the learning package.

Full text available at: