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

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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

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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

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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

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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"