giovedì 15 settembre 2016

STALS Newsletter

Dear friends and colleagues,
we are pleased to announce the contents of this new STALS newsletter.

Stals Research Papers

F. Masini, “Towards a Federal Structure of Economic Governance in the Eurozone”, STALS Research Paper 1/2016, 
M. Kölling , ”The EU budget - from a bargaining tool to a federal budget?”, STALS Research Paper 2/2016, 
STALS events
29 September 2016
“A genealogy of public security: the theory and history of modern police powers”
4 November  2016
 “Crisi dell'euro e conflitto sociale. L'illusione della giustizia attraverso il mercato”
1 December 2016
“Il principio dei best interests of the child: un dialogo”
New Projects
European Public Law-ius (Eur.Publ.ius) 574669-EPP-1-2016-1-IT-EPPJMO-MODULE
All the best from Pisa,

the Editors

Brexit and the Future of the United Kingdom

Brexit and the Future of the United Kingdom

 Etain Tannam


This paper aims to assess the significance of Brexit for the future of the UK as a unitary state and to identify various possible outcome to the future of the UK. The first part provides an overview of the current status of Scotland and Northern Ireland in the UK and the differences between both
cases. The second part of the article assesses the significance of the EU for the devolved administrations and analyses key party responses to the Brexit debate in Scotland and Northern
Ireland. In conclusion the impact of Brexit on the future of the UK as unitary state is assessed.

Full text available at:

venerdì 9 settembre 2016

What is Judicial Supremacy?

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

September 8, 2016

in Comparative Constitutional Theory (Gary Jacobsohn & Miguel Schor eds., Elgar Publishing), Forthcoming 
UCLA School of Law, Public Law Research Paper No. 16-39 

Judicial supremacy is a concept frequently employed in both domestic and comparative constitutional theory but rarely carefully defined and systematically analyzed. Scholars typically either assume its meaning or quickly state how they are using the term before warming to their major theme, focusing on some other aspect of judicial supremacy: how did it emerge, what explains its acceptance by other branches of government, is it or should it be tempered in practice by courts not straying too far from the popular will, is it a good, bad, or practically necessary feature of a constitutional system? Jeremy Waldron's observation that the term has "no canonical definition" suggests that it is not always used in uniform fashion but rather in somewhat different ways in different contexts. Moreover, this range of uses helps to explain why, on only slightly closer inspection, various critics or skeptics of "judicial supremacy" around the world ― departmentalists, "hollow hopers," constitutional dialogists ― do not all seem to be making the same point, but appear to be interlocutors in a number of discrete conversations, differing in both the type and content of their arguments and the positions they are marshaled to support.

This chapter attempts to provide the systematic analysis of the concept that is mostly missing and that is a prerequisite for understanding and assessing the several debates in which it plays a central role. It also aims to evaluate its usefulness as a concept in the toolbox of comparative constitutional theory. Part II identifies and disaggregates four distinct senses or conceptions of judicial supremacy in the relevant literatures, what I shall refer to as "interpretive," "attitudinal," "decisional," and "political supremacy" respectively. It also shows that corresponding to each of the meanings is a distinct opposing or skeptical position. Part III illustrates the multiple meanings by looking at recent resolutions of the same-sex marriage issue by different institutions and mechanisms ― courts, legislatures, popular referenda, courts and legislatures ― in many constitutional systems over the past decade. Part IV attempts to asses the utility of judicial supremacy as a concept in comparative constitutional theory by asking what and how much is at stake in the debates between each conception and its critics. The chapter concludes that, as delimited by the four senses identified, although not as sometimes exaggerated or conflated, it is indeed a useful, non-unitary concept. Its essential status in the field, however, likely turns on further comparative experience.

Number of Pages in PDF File: 38

Keywords: Judicial Supremacy, Departmentalism, Constitutional Interpretation, Same-Sex Marriage, Political Empowerment, Weak-Form Judicial Review, Comparative Constitutional Theory

Formal Versus Functional Method in Comparative Constitutional Law

Francesca Bignami 
George Washington University - Law School


Osgoode Hall Law Journal, Vol. 53(2), p. 442-471, 2016 
GWU Law School Public Law Research Paper No. 2016-39 
GWU Legal Studies Research Paper No. 2016-39 

In the field of comparative constitutional law, the dominant approach to concept formation and research design is formal. That is, comparative projects generally identify what counts as the supreme law that can be enforced against all other sources of law based on the “constitutional” label of the positive law (written constitutions and the jurisprudence of constitutional courts) and the law books. This formal method, however, has significant limitations when compared with the functional method used in the field of comparative law more generally speaking. After a brief exposition of the functional method, this article explores the advantages of the functional method as applied to comparative constitutional law with the problem of judicial review (based on the supreme law) of social and economic policy-making in France, the United States, and Germany. Only in Germany is this law contained in constitutional law. In France, the supreme law is to be found largely in administrative law, because the constitutional court faces an institutional competitor, some would say superior, in the highest administrative court (Conseil d’État). In the United States, the supreme law is to be found in administrative law because economic and social rights — the rights that most directly affect this area of state activity — have largely been read out of constitutional law. Based on the functional method, the article proceeds to identify the similarities that unite the law of France and Germany and that set it apart from the law of the United States. It also outlines the important avenues of theoretical inquiry triggered by these similarities and differences in judicial review. The article concludes by sketching a functional agenda for empirical research in comparative constitutional law.