Ascolta la registrazione della conferenza:
http://www.jus.unitn.it/services/arc/2012/0224i/home.html
mercoledì 29 febbraio 2012
martedì 28 febbraio 2012
Call for paper: A Europe of Rights: the EU and the ECHR
A Europe of Rights: the EU and the ECHR
Abstracts should be submitted to SELU at t.lock@surrey.ac.uk
The Surrey School of Law and the Surrey European Law Unit (SELU) invites proposals for an interdisciplinary workshop to be held 8-9 June 2012 on the theme of ‘A Europe of Rights: the EU and ECHR’.
This workshop seeks submissions which assess the relations between the European Union and the European Convention of Human Rights. It aims to stimulate a debate on both the successes and challenges of the EU-ECHR relationship. The workshop is aimed at young as well as established scholars with an interest in human rights law and policy.
Papers are invited on themes such as, but not limited to, the following aspects:
· Accession of the EU to the ECHR: technical and institutional issues
· Substantive questions related to the jurisprudence of the CJEU and the ECtHR
· Potential lacunae in the EU’s protection of fundamental rights
· Application of ‘European’ human rights law by national courts
· Legitimacy of ‘European’ human rights adjudication.
Applicants are asked to submit an abstract of no more than 400 words on their proposed papers. We are delighted to announce that selected papers will be published (subject to editorial review) in a special edition of the Surrey Law Working Paper Series.
The deadline for submission of abstracts is Friday, 30 March 2012. Successful applicants shall be notified no later than 10 days of this date. The full-text papers are expected to be submitted no later than 15 May 2012.
Dean Spielmann, Judge of the European Court of Human Rights and President of Section V of the Court will deliver the keynote address on 8 June 2012.
We are happy to be in a position to award two scholarships of £250 each to participants who would otherwise not be able to attend the workshop. If you wish to be considered for a scholarship, please indicate this on your proposal and provide us with the reasons why you consider yourself eligible. Otherwise, we regret that we are generally not in a position to offer financial support for travel to the conference or for accommodation.
Abstracts should be submitted to SELU at t.lock@surrey.ac.uk
sabato 25 febbraio 2012
Weston on Intergenerational Ecological Justice
The Theoretical Foundations of Intergenerational Ecological Justice: An Overview
Burns H. Weston
University of Iowa
Human Rights Quarterly, Vol. 34, pp. 251-256, 2012
U Iowa Legal Studies Research Paper No. 12-07
Abstract:
While few would deny that present generations have a moral obligation to preserve the environment for future generations, some theorists reject the existence of a legal duty in this regard. This article takes the opposite view. It argues that ample juridical as well as ethical social justice theory — contractarian distributive and reciprocity-based theories prominent among them — establishes that future generations have a legal right to a clean and healthy environment. But most helpful in ensuring intergenerational ecological justice, the author contends, is a respect-based theory of social justice which at its core honors the values that underwrite human rights law and policy inclusively conceived and embraced.
While few would deny that present generations have a moral obligation to preserve the environment for future generations, some theorists reject the existence of a legal duty in this regard. This article takes the opposite view. It argues that ample juridical as well as ethical social justice theory — contractarian distributive and reciprocity-based theories prominent among them — establishes that future generations have a legal right to a clean and healthy environment. But most helpful in ensuring intergenerational ecological justice, the author contends, is a respect-based theory of social justice which at its core honors the values that underwrite human rights law and policy inclusively conceived and embraced.
Number of Pages in PDF File: 17
Keywords: future generations, ecological justice, social justiceFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009348
Kochenov on The Application of EU Law in the EU's Overseas Regions, Countries and Territories
The Application of EU Law in the EU's Overseas Regions, Countries, and Territories after the Entry into Force of the Treaty of Lisbon
Dimitry Kochenov
University of Groningen - Faculty of Law
Michigan State Journal of International Law, Forthcoming
Abstract:
Several of the EU Member States possess overseas territories lying thousands of kilometres away from Brussels. The application of EU law in such areas can very much differ from the way how this law functions on the European continent. Focusing on the detailed analysis of all the main exceptional statuses enjoyed by the overseas territories of the Member States vis-à-vis the European Union, this article provides an essential outline of the procedural and substantive aspects of the application of European law overseas, drawing on the examples provided by application of European law to the British, Danish, Dutch, Finnish, French, Portuguese and Spanish special territories. Profoundly updating an earlier article which appeared in this Journal before the entry of the Treaty of Lisbon into force and a deep reform of the Dutch and French overseas (Vol. 17, 2008–2009), this contribution contains a brief overview of the key aspects of the field of EU law of the Overseas.
Several of the EU Member States possess overseas territories lying thousands of kilometres away from Brussels. The application of EU law in such areas can very much differ from the way how this law functions on the European continent. Focusing on the detailed analysis of all the main exceptional statuses enjoyed by the overseas territories of the Member States vis-à-vis the European Union, this article provides an essential outline of the procedural and substantive aspects of the application of European law overseas, drawing on the examples provided by application of European law to the British, Danish, Dutch, Finnish, French, Portuguese and Spanish special territories. Profoundly updating an earlier article which appeared in this Journal before the entry of the Treaty of Lisbon into force and a deep reform of the Dutch and French overseas (Vol. 17, 2008–2009), this contribution contains a brief overview of the key aspects of the field of EU law of the Overseas.
Number of Pages in PDF File: 103
Keywords: EU Law, European Union, Overseas, Overseas territories, ultraperipheral regions, outermost regions, associated countries, overseas territories, territory, Hansen, Eman, Aruba, Azores, Madeira, Canary Islands, Martinique, Guadeloupe, Guiana, Polynesia, Greenland, Bonaire, CuracaoFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2010166
Sovereign Debt Restructuring: The Legal Aspects Involved
Sovereign Debt Restructuring: The Legal Aspects Involved
Zeenat Munir Masoodi
National Law School of India University (NLSIU); Aligarh Muslim University (AMU)
CONTEMPORARY LEGAL AND ECONOMIC ISSUES III, Ivana Barkovic Bojanic, Mira Lulic, eds., J.J. Strossmayer University of Osijek, 2011
Abstract:
The history of sovereign debt lending and borrowing goes back to ancient times. Sovereigns borrow money for reasons similar to individuals. The vital difference between the two however, is one of recovery. Unlike individuals, a sovereign’s assets may not be seized and liquidated for recovery of debts. In the absence of an international consensus on how to restructure debt, several techniques and methods have been created and suggested by diverse groups. Many Important changes have ensued and a trend of litigation has also evolved in the past couple of decades.
While sovereign debt restructuring has almost always stirred a debate in the realm of economics, certain important legal issues and aspects also deserve to be highlighted.
The history of sovereign debt lending and borrowing goes back to ancient times. Sovereigns borrow money for reasons similar to individuals. The vital difference between the two however, is one of recovery. Unlike individuals, a sovereign’s assets may not be seized and liquidated for recovery of debts. In the absence of an international consensus on how to restructure debt, several techniques and methods have been created and suggested by diverse groups. Many Important changes have ensued and a trend of litigation has also evolved in the past couple of decades.
While sovereign debt restructuring has almost always stirred a debate in the realm of economics, certain important legal issues and aspects also deserve to be highlighted.
Number of Pages in PDF File: 29
Keywords: Sovereign Debt Restructuring, Paris Club, Bondholders, SDRM, Collective Action Clause, Sovereign Immunity, Vulture FundsFull text available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009949
Murphy on Counter-Terrorism and the Culture of Legality
Counter-Terrorism and the Culture of Legality: The Case of Special Advocates
Abstract:
The pre-emptive shift that marks the reaction to the September 11, 2001 attacks has had a profound effect on the operation of both security services and law enforcement agencies. States identify threats based on intelligence and subject them to restrictive measures that seek to protect the public not just from terrorism but also from the risk of terrorism. Administrative and judicial tribunals have developed rules of procedure for the use of evidence that the state is unwilling, or sometimes unable, to disclose to the subject of the proceedings. The key component of the UK solution to secret evidence is the use of special advocates: lawyers with high security clearance given access to secret evidence that cannot be disclosed to those for whom the advocates act. These special advocates act in closed material proceedings. In such proceedings the individual subject to state action and his legal representatives are excluded but the special advocate acts on the subject’s behalf. The first part of this paper charts the rise of special advocates and closed material proceedings in the UK legal system after the decision of the European Court of Human Rights in Chahal v United Kingdom. It examines the extension of use of closed material proceedings beyond the confines of immigration law into counter-terrorism including in preventive detention and proscription and into other areas of civil law. The second and third parts of the paper highlight the flaws of closed material proceedings. The second part considers the special advocate’s ability to ensure that rule of law principles are upheld in closed material proceedings. It notes several limitations on the special advocate’s role and concludes that the system as it currently works does not comply with the rule of law and is corrosive of the culture of legality. The third part takes a critical turn, examining the special advocate and closed material proceedings as part of a legal grey hole. As the UK tends to be a model for other counter-terrorism systems the final part of the paper examines the potential for these problems to manifest in a new legal setting: the European Union. When Advocate General Sharpston sought to develop ideas on the use of secret evidence before the European Court of Justice it was the UK system to which she turned. This paper advocates the elimination of legal grey holes in UK law and cautions against an erosion of the strong culture of legality in proceedings before the European Court of Justice.
The pre-emptive shift that marks the reaction to the September 11, 2001 attacks has had a profound effect on the operation of both security services and law enforcement agencies. States identify threats based on intelligence and subject them to restrictive measures that seek to protect the public not just from terrorism but also from the risk of terrorism. Administrative and judicial tribunals have developed rules of procedure for the use of evidence that the state is unwilling, or sometimes unable, to disclose to the subject of the proceedings. The key component of the UK solution to secret evidence is the use of special advocates: lawyers with high security clearance given access to secret evidence that cannot be disclosed to those for whom the advocates act. These special advocates act in closed material proceedings. In such proceedings the individual subject to state action and his legal representatives are excluded but the special advocate acts on the subject’s behalf. The first part of this paper charts the rise of special advocates and closed material proceedings in the UK legal system after the decision of the European Court of Human Rights in Chahal v United Kingdom. It examines the extension of use of closed material proceedings beyond the confines of immigration law into counter-terrorism including in preventive detention and proscription and into other areas of civil law. The second and third parts of the paper highlight the flaws of closed material proceedings. The second part considers the special advocate’s ability to ensure that rule of law principles are upheld in closed material proceedings. It notes several limitations on the special advocate’s role and concludes that the system as it currently works does not comply with the rule of law and is corrosive of the culture of legality. The third part takes a critical turn, examining the special advocate and closed material proceedings as part of a legal grey hole. As the UK tends to be a model for other counter-terrorism systems the final part of the paper examines the potential for these problems to manifest in a new legal setting: the European Union. When Advocate General Sharpston sought to develop ideas on the use of secret evidence before the European Court of Justice it was the UK system to which she turned. This paper advocates the elimination of legal grey holes in UK law and cautions against an erosion of the strong culture of legality in proceedings before the European Court of Justice.
Number of Pages in PDF File: 30
Keywords: secret evidence, counter-terrorism, special advocates, rule of law, culture of legalityFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009902
Constantinescu on Judicial Decision-Making
A New Theory of Hunch in Judicial Decision-Making
Abstract:
In this essay I wish to approach an issue which is consistently disregarded in current jurisprudential debates – the issue of the judicial hunch. I wish to argue that hunches and intuitions happen much more often than we think; they are present at all levels of the judiciary, in easy and hard cases, at all levels of expertise. In fact, my argument goes stronger than that: hunches are an essential component of the act of judging. I also wish to show that “legal reasoning”, if it has to be used properly, designates but part of the judicial decision-making process, and it has less importance than legal theorists usually give it.
In our judicial decision-making discussion I wish to introduce two new types of theories which are useful in understanding what judicial hunches are and what role they play in the act of judging. The first one is already widely accepted in psychology and has strong supporting evidence from neuroscience; I will call it the fast/slow thinking distinction. The second theory is based on recent neurological findings and represents the new psychological paradigm of intuition. It tries to answer questions and dilemmas which legal theorists will find familiar: Is intuition rational or emotional? Do feelings influence intuition? Is intuition a process or a result? What role does professional expertise have in intuition? Are intuitions “accurate”? And the list could go on. The applicability of these theories to judicial decision-making will become apparent once I flesh them out in the paper.
Number of Pages in PDF File: 14
Keywords: judges, courts, judicial decisionmaking, hunches, intuition, legal reasoningFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009883
domenica 19 febbraio 2012
EJRR, Special issue "Nudging Healthy Lifestyles – Informing Regulatory Governance with Behavioural Research"
Nudging Healthy Lifestyles – Informing Regulatory Governance with Behavioural Research
Alberto Alemanno
HEC Paris - Law Department
On Amir
University of California, San Diego (UCSD) - Rady School of Management
Luc Bovens
affiliation not provided to SSRN
Adam Burgess
affiliation not provided to SSRN
Orly Lobel
University of San Diego School of Law; Harvard Law School
Kyle Powys Whyte
Michigan State University - Department of Philosophy
Evan Selinger
Rochester Institute of Technology - Department of Philosophy
European Journal of Risk Regulation, Vol. 3, No. 1, January 2012
Abstract:
At a time when policy makers want to change the behaviour of citizens to tackle a broad range of social problems, such as climate change, excessive drinking, obesity and crime, a promising new policy approach has appeared that seems capable of escaping the liberal reservations typically associated with all forms of regulatory action. The approach, which stems from the increasingly ubiquitous findings of behavioural research, is generally captured under the evocative concept of ‘nudge.’ Inspired by ‘libertarian paternalism,’ it suggests that the goal of public policies should be to steer citizens towards making positive decisions as individuals and for society while preserving individual choice. As governments are taking considerable interest in the use of ‘nudging,’ this collection of essays provides a pioneering analysis of this innovative policy approach as it is currently experimented in the United Kingdom and the United States. In particular, it aims at critically examining the application of nudging approaches to the current efforts of regulating lifestyle choices, such as tobacco use, excessive use of alcohol, unhealthy diets and lack of physical exercise. In his opening essay, Nudging Healthy Lifestyles, Adam Burgess provides a critical assessment of the introduction of behavioural, nudging approaches to correct lifestyle behaviours in the UK. His thought-provoking analysis triggered a lively debate that has been framed along the subsequent essays signed by On Amir and Orly Lobel, Evan Selinger and Kyle Powys White, Alberto Alemanno and Luc Bovens. Each of these essays critically reflects upon the effectiveness as well as legitimacy of ‘nudging’ approaches.
Number of Pages in PDF File: 75
Keywords: Nudge, Libertarian Paternalism, Behavioral, Lifestyle, Regulation
Full papers available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2005672
More info at: http://www.albertoalemanno.eu/articles/nudging-healthy-lifestyles-%E2%80%93-informing-regulatory-governance-with-behavioural-research
García Pelayo Seminar: Lorenzo Zucca (KCL), 21 February, CEPC, Madrid
Tuesday,21 February 2012 (11:30 - 13:30)
“Are there constitutional dilemmas?”
Speaker: Lorenzo Zucca (King’s College, London)
Discussant: Silvina Alvarez Medina (Universidad Autónoma de Madrid)
Centro de Estudios Políticos y Constitucionales, Madrid, Plaza de la Marina española 9
Full paper available here: http://www.stals.sssup.it/files/stals_Zucca.pdf
“Are there constitutional dilemmas?”
Speaker: Lorenzo Zucca (King’s College, London)
Discussant: Silvina Alvarez Medina (Universidad Autónoma de Madrid)
Centro de Estudios Políticos y Constitucionales, Madrid, Plaza de la Marina española 9
Full paper available here: http://www.stals.sssup.it/files/stals_Zucca.pdf
Conference: National constitutional identity and European integration, UPF, Barcelona, 23-24 February 2012
Los próxmos días 23 y 24 de febrero el Departamento de Derecho de la Universitat Pompeu Fabra organiza el seminario "National constitucional identity and European integration". El acto abordará aspectos como los orígenes del concepto de identidad nacional constituyente, los métodos para identificarla, las jurisprudencias constitucionales de diferentes países al respecto o la proyección de la identidad mediante el derecho europeo.
http://www.upf.edu/mastercriminologia/es/actualitat/europeanconstituency.html
http://www.upf.edu/dret/_pdf/seminaris/Cartell_European.Constituency.pdf
http://www.upf.edu/mastercriminologia/es/actualitat/europeanconstituency.html
http://www.upf.edu/dret/_pdf/seminaris/Cartell_European.Constituency.pdf
Call for Papers: Conference on European Internal Security at the European University Institute Florence, Italy, 23-25 April 2012
'European Internal Security' Conference
23-25 April 2012
European University Institute, Florence, Italy
Funded by the European Commission, organized by (Professor Adrienne Héritier (EUI), Dr. Christian Kaunert (EUI/ Univ. of Salford), Dr. Sarah Léonard (Sciences Po/ Univ. of Salford), Mr. Marat Markert (EUI), Dr. Helena Carrapiço (James Madison Univ./ Univ. of Coimbra) and Dr. Tina Freyburg (EUI/ MWP) and the Max Weber Post-doctoral Programme of the EUI.
CALL FOR PAPERS
We invite abstracts from both advanced research postgraduate students and established researchers for our multidisciplinary conference on ‘European Internal Security’, to be held at the European University Institute Florence (Italy) on 23-25 April 2012. The conference is generously funded by a grant from the European Commission Jean Monnet Programme/Lifelong Learning Programme. The aim of the conference on 'European Internal Security' is to investigate the drivers in European integration in Justice and Home Affairs. More specifically the conference will focus on the following themes:
(1) What or who are the engines of European integration (or disintegration) in European Internal Security?
(2) Taking stock of long term and current policy developments in the various policy areas of the AFSJ
(3) What inter-institutional relations can be observed and what cooperation patterns can be identified “on the ground” among security practitioners?
(4) Does the External Dimension of the Area of Freedom Security and Justice provide an alternative to the European Common Foreign and Security Policy?
(5) What research approaches and methodologies can be identified for the study of the Area of Freedom, Security and Justice?
Call for Papers: 'The EU's Unknown Asia: New Horizons and New Beginnings'
The call for papers is open for the EU Studies Association Asia Pacific (EUSAAP) annual conference in 2012:
‘The EU’s Unknown Asia: New Horizons and New Beginnings’
Conference Call for Papers Deadline: February 24th 2012
Conference dates: 4th and 5th June 2012 in Singapore
Submit your abstract online at http://www.eusaap.org.nz/forms/conference_form.html
Conference Themes:
Visision of the Other - While politicians are claiming Asia as a new priority, commentators are claiming that the EU is still undervaluing Asia. What is the state of EU-Asia Relations? How do these two regions view each other and how has this impacted in the visibility of the EU in the region? How do current events such as Fukushima and the Eurozone crisis impact on the Asia EU relationship?Models of Integration – What comparisons can be drawn between different modules of regionalism an integration as expressed in these two regions? What lessons can be learnt from the other and how can different forms of regionalism work together?
The Way Forward – What will be the challenges that these regions face in their on-going relationship building? what models and innovations for future cooperation are there? What role do FTAs play in these relationships? EU and Asia in World Affairs - How do regions work together on the international stage? What roles do the EU and Asia have in multilateralism and global governance? How have recent international events such as the Arab Spring and International Financial Crisis impacted how the EU and Asia interact?
9th International Workshop for Young Scholars (2012)
CALL FOR PAPERS
THE FUTURE OF TRANSNATIONAL LAW:
THE EU, USA, CHINA, AND THE BRICS
9th International Workshop for Young Scholars (WISH)
Organised by
European Law Journal
and
Centre for Research on Transnational Law,
Peking University School of Transnational Law,
Peking University Shenzhen Graduate School
College of Europe, Bruges, Belgium
and partners
Thursday 29 November through Saturday 1 December 2012
Peking University School of Transnational Law (PKUSTL),
Peking University Shenzhen Graduate School, University Town,
Shenzhen, China
Transnational law has proliferated during the past two decades. In his famous 1956 Storrs lectures at Yale Law School, Philip Jessop defined ‘transnational law‘ as including ‘all law which regulates actions or events that transcend national frontiers‘. However, globalisation, European integration, global legal pluralism, the creation of the WTO, and the rise of China and the other BRICS have altered the legal landscape.
What is the future of transnational law? What does ‘transnational law’ mean in an age marked by global legal pluralism and the emergence of new sites of governance in virtually all domains of life? Are ‘public international law’ and ‘private international law’ still ‘standard categories’? Is all law today ‘transnational’? Is transnational law a legal system? How is transnational law connected to specific political systems or territories? How is it relevant to citizens, governments, and organisations? How does it relate to regional, national and local cultures and traditions? Is transnational law limited to major players on the international stage, such as the European Union, the United States and China? Does it reflect the rise of the BRICS? What does ‘transnational law’ have to do with concerns such as gender, human rights, food safety, social solidarity ethics, education, international labour relations, the emergence of regional or global networks, the current environmental crisis, or global governance? How have the BRICS influenced these concerns and brought new issues of and challenges to transnational law?
sabato 18 febbraio 2012
Rodin on National Identity and Market Freedoms
National Identity and Market Freedoms after The
Treaty of Lisbon
Abstract:
The aim of this paper is to explore the balance between market freedoms and national regulatory autonomy following the entry into force of the Treaty of Lisbon, particularly in the light of the rephrased national identity guarantee under Article 4(2) TEU.The paper will discuss whether the newly established obligation of the European Union to respect the national identities of its Member States has any consequences in the case law of the European Court of Justice. Arguably, defining the proper scope of application of the national identity guarantee is relevant to the application of EU law, since it disturbs the previously established balance between European and national law. If defined too broadly, it can undermine the uniform application and effectiveness of EU law. If defined too narrowly, it would be devoid of any useful effect. With this objective in mind, I will first clarify the concept of national identity and, more specifically, national constitutional identity.
Second, I will discuss the case law of the ECJ preceding the entry into force of the Treaty of Lisbon. In this part, I will suggest that the development of national identity law before the Treaty of Lisbon went through three evolutionary phases: a phase of early and implicit national identity law; a phase in which the ECJ developed the margin of discretion doctrine; and a phase in which the ECJ started to differentiate national constitutional rules and accord them different levels of scrutiny.
In the third part, I will explore whether there have been significant developments in the national identity case law of the ECJ after the entry into force of the Treaty of Lisbon, and suggest that the general approach of the ECJ has not significantly changed. I will also argue that the main developments related to Article 4(2) TEU have not taken place before the ECJ, but in national arenas, notably in France and Germany.
In the fourth and final part, I will return to the issue of the differentiation of national identity claims and conclude that one category is understood by the ECJ as an ordinary justification of national measures restricting one of the market freedoms, while the other category of claims prompts the ECJ to defer to national authorities.
The aim of this paper is to explore the balance between market freedoms and national regulatory autonomy following the entry into force of the Treaty of Lisbon, particularly in the light of the rephrased national identity guarantee under Article 4(2) TEU.The paper will discuss whether the newly established obligation of the European Union to respect the national identities of its Member States has any consequences in the case law of the European Court of Justice. Arguably, defining the proper scope of application of the national identity guarantee is relevant to the application of EU law, since it disturbs the previously established balance between European and national law. If defined too broadly, it can undermine the uniform application and effectiveness of EU law. If defined too narrowly, it would be devoid of any useful effect. With this objective in mind, I will first clarify the concept of national identity and, more specifically, national constitutional identity.
Second, I will discuss the case law of the ECJ preceding the entry into force of the Treaty of Lisbon. In this part, I will suggest that the development of national identity law before the Treaty of Lisbon went through three evolutionary phases: a phase of early and implicit national identity law; a phase in which the ECJ developed the margin of discretion doctrine; and a phase in which the ECJ started to differentiate national constitutional rules and accord them different levels of scrutiny.
In the third part, I will explore whether there have been significant developments in the national identity case law of the ECJ after the entry into force of the Treaty of Lisbon, and suggest that the general approach of the ECJ has not significantly changed. I will also argue that the main developments related to Article 4(2) TEU have not taken place before the ECJ, but in national arenas, notably in France and Germany.
In the fourth and final part, I will return to the issue of the differentiation of national identity claims and conclude that one category is understood by the ECJ as an ordinary justification of national measures restricting one of the market freedoms, while the other category of claims prompts the ECJ to defer to national authorities.
Number of Pages in PDF File: 25
Keywords: national identitiy, constitutional identity, Treaty of LisbonFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2005691
Alemanno on Tobacco Risk Regulation
Nudging Smokers - The Behavioural Turn of Tobacco Risk Regulation
European Journal of Risk Regulation, Vol. 3, p. 1, 2012
Abstract:
At a time when policy makers want to change the behaviour of citizens to tackle a broad range of social problems, such as climate change, excessive drinking, obesity and crime, a promising new policy approach has appeared that seems capable of escaping the liberal reservations typically associated with all forms of regulatory action. After having relied on the assumption that governments can only change people’s behaviour through rules and regulations, policy makers now seem ready to design policies that better reflect how people really behave, not how they are assumed to behave as rational agents. The approach, which stems from the increasingly ubiquitous findings of behavioural research, is generally captured under the evocative concept of ‘nudge’. Inspired by ‘libertarian paternalism’, it suggests that the goal of public policies should be to steer citizens towards making positive decisions as individuals and for society while preserving individual choice. This contribution aims at critically examining the application of nudging approaches to the current efforts of regulating lifestyle choices, such as tobacco use, excessive use of alcohol, unhealthy diets and lack of physical exercise. In particular, it discusses the viability of nudges approaches as applied to current tobacco control policies. After providing an account of the range of tobacco control policy tools that have developed over time, the article discusses the regulatory philosophy currently underlying anti-tobacco efforts by focusing on the mainstream concept of ‘de-normalisation.’ It then illustrates how most of the policies aimed at de-normalising tobacco today rely on ‘nudging’ approaches via behavioural change rather than via the provision of information. It finally argues that – due to the actual approach towards tobacco – most of the flaws generally identified with this alternative regulatory approach seem overcome in the context of tobacco control. However, despite its potential for providing a philosophical base justifying the current ‘permit but discourage’ approach typical of tobacco control and other lifestyle policies, it cannot be ruled out that ‘nudging’ might encounter some of the same obstacles it faces in other less contentious areas of policy-making.
At a time when policy makers want to change the behaviour of citizens to tackle a broad range of social problems, such as climate change, excessive drinking, obesity and crime, a promising new policy approach has appeared that seems capable of escaping the liberal reservations typically associated with all forms of regulatory action. After having relied on the assumption that governments can only change people’s behaviour through rules and regulations, policy makers now seem ready to design policies that better reflect how people really behave, not how they are assumed to behave as rational agents. The approach, which stems from the increasingly ubiquitous findings of behavioural research, is generally captured under the evocative concept of ‘nudge’. Inspired by ‘libertarian paternalism’, it suggests that the goal of public policies should be to steer citizens towards making positive decisions as individuals and for society while preserving individual choice. This contribution aims at critically examining the application of nudging approaches to the current efforts of regulating lifestyle choices, such as tobacco use, excessive use of alcohol, unhealthy diets and lack of physical exercise. In particular, it discusses the viability of nudges approaches as applied to current tobacco control policies. After providing an account of the range of tobacco control policy tools that have developed over time, the article discusses the regulatory philosophy currently underlying anti-tobacco efforts by focusing on the mainstream concept of ‘de-normalisation.’ It then illustrates how most of the policies aimed at de-normalising tobacco today rely on ‘nudging’ approaches via behavioural change rather than via the provision of information. It finally argues that – due to the actual approach towards tobacco – most of the flaws generally identified with this alternative regulatory approach seem overcome in the context of tobacco control. However, despite its potential for providing a philosophical base justifying the current ‘permit but discourage’ approach typical of tobacco control and other lifestyle policies, it cannot be ruled out that ‘nudging’ might encounter some of the same obstacles it faces in other less contentious areas of policy-making.
Number of Pages in PDF File: 20
Keywords: Nudge, Libertarian Paternalism, Behavioral, Lifestyle, Risk Regulation, Tobacco control, Warnings, Plain Packaging, Visual DisplayFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2006599
Belavusau on hate speech and EU law
Fighting Hate Speech Through EU Law
Uladzislau Belavusau
Vrije Universiteit Amsterdam
Amsterdam Law Forum, Vol. 4, No. 1, pp. 20-35, 2012
Abstract:
This article explores the rise of the European ‘First Amendment’ beyond national and Strasbourg law, offering a fresh look into the previously under-theorised issue of hate speech in EU law. Building its argument on (1) the scrutiny of fundamental rights protection, (2) the distinction between commercial and non-commercial speech, and, finally, (3) the looking glass of critical race theory, the paper demonstrates how the judgment of the ECJ in the Feryn case implicitly consolidated legal narratives on hate speech in Europe. In this way, the paper reconstructs the dominant European theory of freedom of expression via rhetorical and victim-centered constitutional analysis, bearing important ethical implications for European integration.
This article explores the rise of the European ‘First Amendment’ beyond national and Strasbourg law, offering a fresh look into the previously under-theorised issue of hate speech in EU law. Building its argument on (1) the scrutiny of fundamental rights protection, (2) the distinction between commercial and non-commercial speech, and, finally, (3) the looking glass of critical race theory, the paper demonstrates how the judgment of the ECJ in the Feryn case implicitly consolidated legal narratives on hate speech in Europe. In this way, the paper reconstructs the dominant European theory of freedom of expression via rhetorical and victim-centered constitutional analysis, bearing important ethical implications for European integration.
Number of Pages in PDF File: 16
Keywords: freedom of expression, hate speech, EU non-discrimination, Feryn, critical race theoryFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2005377
Barbier and Colomb on Social Europe
EU Law as Janus Bifrons: A Sociological Approach to 'Social Europe'
Jean-Claude Barbier
Université Paris I Panthéon-Sorbonne - Sciences Juridiques & Science Politique
Fabrice Colomb
Université Paris I Panthéon-Sorbonne - Sciences Juridiques & Science Politique
European Integration Online Papers, Vol. 16, No. 1, Article 2, 2011
Abstract:
On the basis of sociological research focused on actions and appreciations of “social policy” actors, this paper contends that, apart from the powerful constraint of macroeconomic governance, the main governance instrument has been hard law, even in an area where member states are deemed to have retained most of their jurisdiction (Leibfried and Pierson, 1995, Ferrera, 2005; Barbier, 2008). The sociological material is systematically cross-checked with legal literature and with material drawn from 26 EU law specialists. The authors focus on the relationship between EU law and “social law” (social protection, labor law and social services). The main finding is the confirmation of the jeopardization of systems of social protection in the “old member states”. On the other hand, though, the Court of Justice of the European Union and the Commission have been able to display continual advances on the subject of “fundamental rights”, thus producing key sources of legitimacy among various actors. With the classically documented support of big business and corporations, and the active support of non-governmental organizations in favor of expanding individual fundamental rights, the on-going dynamics of EU law seems to inexorably lead to the demise of the late 19th century born systems of social protection, as F. Scharpf argues. This deterministic analysis however does not take into account the current uncertainties about the role of actors.
On the basis of sociological research focused on actions and appreciations of “social policy” actors, this paper contends that, apart from the powerful constraint of macroeconomic governance, the main governance instrument has been hard law, even in an area where member states are deemed to have retained most of their jurisdiction (Leibfried and Pierson, 1995, Ferrera, 2005; Barbier, 2008). The sociological material is systematically cross-checked with legal literature and with material drawn from 26 EU law specialists. The authors focus on the relationship between EU law and “social law” (social protection, labor law and social services). The main finding is the confirmation of the jeopardization of systems of social protection in the “old member states”. On the other hand, though, the Court of Justice of the European Union and the Commission have been able to display continual advances on the subject of “fundamental rights”, thus producing key sources of legitimacy among various actors. With the classically documented support of big business and corporations, and the active support of non-governmental organizations in favor of expanding individual fundamental rights, the on-going dynamics of EU law seems to inexorably lead to the demise of the late 19th century born systems of social protection, as F. Scharpf argues. This deterministic analysis however does not take into account the current uncertainties about the role of actors.
Number of Pages in PDF File: 25
Keywords: sociology, europeanization, governance, negative integration, legitimacy, lobbying, policy networks, welfare state, economic law, provision of services, EU social policy, Social CharterFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2006402
Ginsburg on Judicial Control of Agents in Authoritarian Regimes
Administrative Law and the Judicial Control of Agents in Authoritarian Regimes
Tom Ginsburg
University of Chicago Law School
THE POLITICS OF COURTS IN AUTHORITARIAN REGIMES, Tom Ginsburg and Tamir Moustafa, eds., Cambridge University Press, 2008
Abstract:
One reason that dictators empower courts is to monitor and discipline lower level administrative agents. This chapter applies a version of the well-known McNollgast framwork to understand the evolution of administrative law in modern China. Administrative law became an attractive solution to principal-agent problems just as ideology was disappearing as an effective tool in the post 1979 period.
One reason that dictators empower courts is to monitor and discipline lower level administrative agents. This chapter applies a version of the well-known McNollgast framwork to understand the evolution of administrative law in modern China. Administrative law became an attractive solution to principal-agent problems just as ideology was disappearing as an effective tool in the post 1979 period.
Number of Pages in PDF File: 26
Keywords: authoritarianism, administrative law, ChinaFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2006538
mercoledì 15 febbraio 2012
Fernandes and Rubio on Solidarity within the Eurozone
Abstract
http://www.notre-europe.eu/uploads/tx_publication/SolidarityEMU_S.Fernandes-E.Rubio_NE_Feb2012.pdf
The first ten years of EMU passed by with no major debate on the solida-rity implications of creating a common currency. Since 2010, however, the Eurozone debt crisis has forced member states to make some steps in the exercise of solidarity that were unimaginable just some years ago. This has prompted a sharp debate on what solidarity means in the context of the EMU and how much solidarity is needed to get out of the crisis. The aim of this Policy Paper is to shed light on these issues.
http://www.notre-europe.eu/uploads/tx_publication/SolidarityEMU_S.Fernandes-E.Rubio_NE_Feb2012.pdf
martedì 14 febbraio 2012
domenica 12 febbraio 2012
Hailbronner and Iglesias Sánchez on EU Citizenship
The European Court of Justice and Citizenship of the European Union: New Developments Towards a Truly Fundamental Status
Vienna Journal on International Constitutional Law, Forthcoming
Abstract:
In two recent, revolutionary decisions, – Janko Rottmann C-135/08 and Ruiz Zambrano C-34/09 – the European Court of Justice has firmly emancipated the status of citizenship of the Union from the “cross-border” requirement and has inaugurated a new area for the protection of rights closely linked to the core of sovereignty of States, nationality and residence. This Article examines these two judgments and argues that they advance the construction of citizenship towards a federal status. The “genuine enjoyment of the substance of citizenship rights” has emerged as a new legal category capable of providing a uniform and general protection and entails the affirmation of a core of rights of supranational nature. This new development raises questions as to whether the ECJ’s expansionist reading of citizenship constitutes a legitimate exercise of judicial power and what the relationship between citizenship and EU fundamental rights will be. We conclude by exploring the potential of the analyzed judgments in placing Union citizenship at the center of the emergence of a constitutional patriotism in Europe.
In two recent, revolutionary decisions, – Janko Rottmann C-135/08 and Ruiz Zambrano C-34/09 – the European Court of Justice has firmly emancipated the status of citizenship of the Union from the “cross-border” requirement and has inaugurated a new area for the protection of rights closely linked to the core of sovereignty of States, nationality and residence. This Article examines these two judgments and argues that they advance the construction of citizenship towards a federal status. The “genuine enjoyment of the substance of citizenship rights” has emerged as a new legal category capable of providing a uniform and general protection and entails the affirmation of a core of rights of supranational nature. This new development raises questions as to whether the ECJ’s expansionist reading of citizenship constitutes a legitimate exercise of judicial power and what the relationship between citizenship and EU fundamental rights will be. We conclude by exploring the potential of the analyzed judgments in placing Union citizenship at the center of the emergence of a constitutional patriotism in Europe.
Number of Pages in PDF File: 50
Keywords: European law, federalism, Union citizenship, migration, constitutional patriotism Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1927198
Has Italy Turned the Corner? EUI
From the EUI website: www.eui.eu
Watch the video: http://www.youtube.com/watch?v=6rLIhk8PEEg
On Monday 6 February Stefano Bartolini, Elena Carletti, and Giovanni Federico met Guy Dinmore, Rome correspondent of the Financial Times to talk about the historical, economic, social and political reasons that triggered the current economic crisis in Italy.
The participants in the dinner discussed extensively the various issues that need to be tackled to resolve the crisis. At the end of the debate they unanimously concluded that Italy has indeed turned the corner and its prospects are good in the short term. However, long-term outcomes remain unpredictable, and other major challenges will have to be faced.
The discussion is an initiative in the framework of the EUI “Opinion Making Press” cycle, aiming to expose the wider public to the EUI and its professors and researchers through the international press.
Watch the video: http://www.youtube.com/watch?v=6rLIhk8PEEg
Coan on Judicial Capacity and the Substance of Constitutional Law
Andrew B. Coan
University of Wisconsin Law School
Univ. of Wisconsin Legal Studies Research Paper No. 1190
Abstract:
Courts can decide only a small fraction of constitutional issues generated by the American government. This is widely acknowledged. But why do courts have such limited capacity? And how does this limitation affect the substance of constitutional law? This paper advances a twofold thesis. First, constraints on judicial capacity derive from a combination of the hierarchical structure of the judiciary and broadly held judicial norms. Second, in certain important constitutional domains, these constraints create strong pressure on courts to adopt hard-edged categorical rules, defer to the political process, or both. The argument is mostly positive but has significant normative implications. In particular, the constraints of judicial capacity suggest a new and previously unexplored justification for courts to defer many constitutional questions to the political process. Capacity constraints also help to explain the reluctance of courts to challenge political majorities, diminishing though not eliminating the countermajoritarian difficulty. For these reasons and others, judicial capacity deserves a central place on the agenda of constitutional theory.
Courts can decide only a small fraction of constitutional issues generated by the American government. This is widely acknowledged. But why do courts have such limited capacity? And how does this limitation affect the substance of constitutional law? This paper advances a twofold thesis. First, constraints on judicial capacity derive from a combination of the hierarchical structure of the judiciary and broadly held judicial norms. Second, in certain important constitutional domains, these constraints create strong pressure on courts to adopt hard-edged categorical rules, defer to the political process, or both. The argument is mostly positive but has significant normative implications. In particular, the constraints of judicial capacity suggest a new and previously unexplored justification for courts to defer many constitutional questions to the political process. Capacity constraints also help to explain the reluctance of courts to challenge political majorities, diminishing though not eliminating the countermajoritarian difficulty. For these reasons and others, judicial capacity deserves a central place on the agenda of constitutional theory.
Number of Pages in PDF File: 47
Keywords: Judicial Capacity, Constitutional Law, Courts, Judicial Decision-Making, Judicial PoliticsFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2000735
Boucher on deliberation with citizens in EU policy-making processes
If Citizens Have a Voice, Who's Listening? Lessons from Recent Citizen Consultation Experiments for the European Union
Abstract:
Are European Union institutions, as they claim, really listening to citizens thanks to more ‘deliberative’ consultation tools? The European Commission and the European Parliament in particular have committed themselves to engaging in a dialogue with citizens in recent years. But to what effect? This paper notes how official policies have adopted language borrowed from the deliberative democracy school of thinking, but denounces the lack of clarity in the role assigned to deliberation with citizens in EU policy-making processes. It also invites EU policy-makers to think more critically about recent and future experiments that present themselves as ‘deliberative’. It does so by highlighting areas for improvement in recent initiatives. Finally, it makes a number of recommendations for the future of dialogue with citizens, suggesting in particular the creation of a European Observatory for Democracy and Opinion, as well as a list of criteria to assess the design and role of such activities, and the concentration of efforts on one high-quality, high-impact initiative per year.
Are European Union institutions, as they claim, really listening to citizens thanks to more ‘deliberative’ consultation tools? The European Commission and the European Parliament in particular have committed themselves to engaging in a dialogue with citizens in recent years. But to what effect? This paper notes how official policies have adopted language borrowed from the deliberative democracy school of thinking, but denounces the lack of clarity in the role assigned to deliberation with citizens in EU policy-making processes. It also invites EU policy-makers to think more critically about recent and future experiments that present themselves as ‘deliberative’. It does so by highlighting areas for improvement in recent initiatives. Finally, it makes a number of recommendations for the future of dialogue with citizens, suggesting in particular the creation of a European Observatory for Democracy and Opinion, as well as a list of criteria to assess the design and role of such activities, and the concentration of efforts on one high-quality, high-impact initiative per year.
Number of Pages in PDF File: 26
Keywords: European Union, European commission, European Parliament, European observatory for democracy and opinion, EU, policy-makingFull text available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2001336
Tanguay-Renaud on Governance in Emergencies
Basic Challenges for Governance in Emergencies
François Tanguay-Renaud
Osgoode Hall Law School - York University
JUSTICE, RESPONSIBILITY, AND RECONCILIATION IN THE WAKE OF CONFLICT, A. Speight & A. MacLachlan, eds., Springer, Forthcoming
Osgoode CLPE Research Paper No. 3/2012
Abstract:
What are emergencies and why do they matter? In this chapter (in its penultimate version), I seek to outline the morally significant features of the concept of emergency, and demonstrate how these features generate corresponding first- and second-order challenges and responsibilities for those in a position to do something about them. In section A, I contend that emergencies are situations in which there is a risk of serious harm and a need to react urgently if that harm is to be averted or minimized. These conceptual features matter morally, since it is precisely to them that those who invoke emergencies to justify otherwise impermissible actions tend to appeal. The basic first-order challenge facing emergency responders is two-fold. It is, first, to identify how these features shape circumstances of action in ways that affect (or do not affect) which reasons for action and which corresponding courses of conduct are justifiably available to them. In situations when emergency responders are compelled to make authoritative determinations due to significant contestability and indeterminacies in the contours or materialization of the said features, their challenge is then also to make these determinations legitimately. In section B, I argue that second-order challenges having to do with the foreseeability of emergencies, the value(s) of exposure to them, and their preventability further compound the predicament of emergency responders. I conclude, in section C, by saying a few words about one last morally salient feature shared by many, though not all, emergencies considered in the chapter — namely, their public dimension.
What are emergencies and why do they matter? In this chapter (in its penultimate version), I seek to outline the morally significant features of the concept of emergency, and demonstrate how these features generate corresponding first- and second-order challenges and responsibilities for those in a position to do something about them. In section A, I contend that emergencies are situations in which there is a risk of serious harm and a need to react urgently if that harm is to be averted or minimized. These conceptual features matter morally, since it is precisely to them that those who invoke emergencies to justify otherwise impermissible actions tend to appeal. The basic first-order challenge facing emergency responders is two-fold. It is, first, to identify how these features shape circumstances of action in ways that affect (or do not affect) which reasons for action and which corresponding courses of conduct are justifiably available to them. In situations when emergency responders are compelled to make authoritative determinations due to significant contestability and indeterminacies in the contours or materialization of the said features, their challenge is then also to make these determinations legitimately. In section B, I argue that second-order challenges having to do with the foreseeability of emergencies, the value(s) of exposure to them, and their preventability further compound the predicament of emergency responders. I conclude, in section C, by saying a few words about one last morally salient feature shared by many, though not all, emergencies considered in the chapter — namely, their public dimension.
Number of Pages in PDF File: 23
Keywords: concept of emergency, public emergencies, needs, harm, urgency, risk, foreseeability, preventability, indeterminacy, governance, state, authority, justification, excuseFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2000790
Bristard on the CJEU
The European Court of Justice: Empowered After Lisbon
Abstract:
This paper considers the most important changes brought by the Treaty of Lisbon to the functioning of the Court of Justice of the European Union. These changes concern the internal organization of the institution, the appointment of its members and the extension of its jurisdiction in the areas of freedom, security and justice, foreign and security policy, as well as its new power to protect fundamental rights.
This paper considers the most important changes brought by the Treaty of Lisbon to the functioning of the Court of Justice of the European Union. These changes concern the internal organization of the institution, the appointment of its members and the extension of its jurisdiction in the areas of freedom, security and justice, foreign and security policy, as well as its new power to protect fundamental rights.
Note: Downloadable document is in English and French.
Number of Pages in PDF File: 18
Keywords: Treaty of Lisbon, European Court of Justice, European Union, EU, freedom, security, justiceFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2001358
mercoledì 8 febbraio 2012
Alemanno "What a Role for the EU in ‘Lifestyle Regulation’?" (CEU-S.Pablo, Madrid February 13 2012)
On February 13 2012 (Monday) Alberto Alemanno (Jean Monnet Chair at HEC Paris, http://albertoalemanno.eu/pages/profile) will give a talk on “What a Role for the EU in ‘Lifestyle Regulation’? The Challenges of Regulating Excessive Consumption of Alcohol, Tobacco and Unhealthy Foods” at the CEU-S.Pablo University (time: 9.30-11.30, venue: CEU-S.Pablo University, Sala de Juntas de Rectorado),
Here you can find an abstract:
As more and more citizens come to reap the benefits of open trade on a global scale, as well as extended lifespan and high quality of life, they also seem to expect public authorities to deliver more protection against those threats, whether industrial or natural. Amid contemporary preoccupations with risks, managing threats to society has become one of the central tasks of governments. Despite its lack of full statehood, the EU does not seem an exception to this trend. Although not originally foreseen in the founding Treaty, the EU has over the last two decades witnessed the enactment of a vast body of legislation aimed at the protection of individuals’ health and safety. Collectively, this large body of legislation is often referred as ‘risk regulation’ because it seeks to address the risk of harm to individuals and society, stemming from all threats whether industrial or natural, voluntary or involuntary. As such it represents today the most important and widespread form of EU regulation in the internal market. The EU’s involvement in the government of risk is likely to grow and go beyond traditional product regulation. Due to the rising awareness of the need to tackle the so-called health risk factors, such as tobacco use, excessive alcohol consumption and unhealthy diets, and of the link between good health and economic performance, the EU is progressively shaping – despite its limited competence in health matters – a ‘EU lifestyle policy’.
After illustrating the main features of this EU emerging policy, by focusing on the coexistence of traditional regulatory and self-regulatory mechanisms, this presentation offers an account of the legal, moral and public health challenges facing governmental efforts aimed at curbing lifestyle risks.
If you are interested in attending the event, please send an email to: javier.porrasbelarra@ceu.es or martinico@cepc.es
Garcia Pelayo Seminar (Rubén Ruiz Rufino, February 14 2012, CEPC)
14 de febrero de 2012 (11:30 – 13:30)
“Surviving in government. How electoral rules explain pre-electoral harassment”
Ponente: Rubén Rufino (CEPC)
Contraponente: Luz Marina Arias (Fundación Juan March)
http://www.cepc.es/en/Investigacion/Programa_Garcia_Pellayo/Seminario_investigadoresNW.aspx
“Surviving in government. How electoral rules explain pre-electoral harassment”
Ponente: Rubén Rufino (CEPC)
Contraponente: Luz Marina Arias (Fundación Juan March)
http://www.cepc.es/en/Investigacion/Programa_Garcia_Pellayo/Seminario_investigadoresNW.aspx
martedì 7 febbraio 2012
Alemanno on the ECJ and social media
Taken from http://www.albertoalemanno.eu/
The full text of judgments and Opinions by the Court of Justice of the European Union is available on the Curia site, in general from 12 pm CET on the day of delivery. However, there is no other institutional medium enabling observers to learn about the outcome of a case beforehand. Given that judgments are generally read at 9.30 am, this leaves a vacuum in the news cycle. You are in the courtroom when the judgment is read or you are lucky enough to have a journalist reporting about the case, otherwise you will be left in a news vacuum....
full text available at: http://www.albertoalemanno.eu/articles/let%E2%80%99s-make-the-european-courts-tweet
The full text of judgments and Opinions by the Court of Justice of the European Union is available on the Curia site, in general from 12 pm CET on the day of delivery. However, there is no other institutional medium enabling observers to learn about the outcome of a case beforehand. Given that judgments are generally read at 9.30 am, this leaves a vacuum in the news cycle. You are in the courtroom when the judgment is read or you are lucky enough to have a journalist reporting about the case, otherwise you will be left in a news vacuum....
full text available at: http://www.albertoalemanno.eu/articles/let%E2%80%99s-make-the-european-courts-tweet
domenica 5 febbraio 2012
Pavone on "The European Court of Justice and the Turn to Fundamental Rights Protection"
A Case of Disaggregated Sovereignty: The European Court of Justice and the Turn to Fundamental Rights Protection, 1969-1974
Tommaso Pavone
University of Chicago
February 1, 2012
Abstract:
This paper analyzes the decision of the European Court of Justice (ECJ) to protect fundamental human rights in a series of important cases between 1969 and 1974. It addresses the central question of what prompted this jurisdictional expansion – was the court simply channeling the preferences of member states, was it acting independently in the quest for self-empowerment, or is the narrative more complicated? Drawing from a case study of its Stauder (1969), Internationale Handelsgesellschaft (1970), and Nold (1974) decisions, I argue that the Court’s turn to protect fundamental rights is neither emblematic of the constraining power of member states nor the ECJ’s supranational entrepreneurialism. Rather, the Court’s decisions support a theory of disaggregated sovereignty that emphasizes the role of transnational judicial networks. These networks produce webs of intertwined elastic linkages and dialectical interactions that play an increasingly important role in the daily practice of European governance.
This paper analyzes the decision of the European Court of Justice (ECJ) to protect fundamental human rights in a series of important cases between 1969 and 1974. It addresses the central question of what prompted this jurisdictional expansion – was the court simply channeling the preferences of member states, was it acting independently in the quest for self-empowerment, or is the narrative more complicated? Drawing from a case study of its Stauder (1969), Internationale Handelsgesellschaft (1970), and Nold (1974) decisions, I argue that the Court’s turn to protect fundamental rights is neither emblematic of the constraining power of member states nor the ECJ’s supranational entrepreneurialism. Rather, the Court’s decisions support a theory of disaggregated sovereignty that emphasizes the role of transnational judicial networks. These networks produce webs of intertwined elastic linkages and dialectical interactions that play an increasingly important role in the daily practice of European governance.
Number of Pages in PDF File: 31
Keywords: European Court of Justice, Court of Justice of the European Union, human rights, fundamental rights, European Union, European integration, intergovernmentalism, neofunctionalism, principal-agent theory, sovereignty, transnational governanceFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1997528
Raffaelli on the Achughbabian judgment (C-329/11)
Case Note: The Achughbabian Case: Impact of the Return Directive on National Criminal Legislation
Rosa Raffaelli
New York University (NYU) - School of Law; Scuola Superiore Sant'Anna
Diritto Penale Contemporaneo, 2012
Abstract:
Case note on the Achughbabian judgment of the ECJ (C-329/11) and on the impact of the Returns Directive on national criminal legislation.
Number of Pages in PDF File: 11
Keywords: Return directive, expulsion, immigration, European Union, criminal law
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1998324
venerdì 3 febbraio 2012
New STALS paper: Bianco and Ragues on "Cour de justice et la libre prestation de services"
G. Bianco, T. Ragues - La Cour de justice et la libre prestation de services : entre proportionnalité et droits fondamentaux, STALS Research Paper, 1/2012, http://www.stals.sssup.it/files/Paper_Bianco_Ragues_final.pdf
Utrecht Law Review, Vol. 8, No. 1, 2012
The new issue of the Utrecht Law Review can be downloaded here:
http://www.utrechtlawreview.org/index.php/ulr
http://www.utrechtlawreview.org/index.php/ulr
Kroncke on Law & Development
Abstract:
This article asserts that during the twentieth century, American law has predominately structured its relationship to foreign legal experience through a set of ideas and practices known as “law and development,” which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism.
This article demonstrates that the history of law and development’s failures is far older than has been traditionally recognized, and dates back to the turn of the twentieth century. In this era, foreign reform became a key part of the professional image of the modern American lawyer. At the same time, the origins of law and development were intimately tied to the decline of comparative law in American legal culture. This history reveals that the paradox of law and development’s contemporary popularity can only be understood by recognizing the cultural politics that these developments embedded in the American legal community. The troubling legacy of this widely entrenched view of America as solely an exporter of legal knowledge presents pressing liabilities for American law, both internationally and domestically, on the competitive terrain of the twenty-first century.
This article concludes that in order to address these liabilities, America should categorically abandon law and development and should fundamentally reorient its relationship to foreign legal experience through a self-interested practice of comparative law. As exemplified in the debate over judicial citation of foreign precedents, this shift will require basic changes in how American legislative and administrative bodies relate to foreign law, as well as the place of comparative law in American law schools. Such a reorientation will enable America to strategically perceive foreign legal developments and, most critically, productively adapt foreign legal experience as an energizing stimulant to our own legal innovation.
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1997425
This article asserts that during the twentieth century, American law has predominately structured its relationship to foreign legal experience through a set of ideas and practices known as “law and development,” which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism.
This article demonstrates that the history of law and development’s failures is far older than has been traditionally recognized, and dates back to the turn of the twentieth century. In this era, foreign reform became a key part of the professional image of the modern American lawyer. At the same time, the origins of law and development were intimately tied to the decline of comparative law in American legal culture. This history reveals that the paradox of law and development’s contemporary popularity can only be understood by recognizing the cultural politics that these developments embedded in the American legal community. The troubling legacy of this widely entrenched view of America as solely an exporter of legal knowledge presents pressing liabilities for American law, both internationally and domestically, on the competitive terrain of the twenty-first century.
This article concludes that in order to address these liabilities, America should categorically abandon law and development and should fundamentally reorient its relationship to foreign legal experience through a self-interested practice of comparative law. As exemplified in the debate over judicial citation of foreign precedents, this shift will require basic changes in how American legislative and administrative bodies relate to foreign law, as well as the place of comparative law in American law schools. Such a reorientation will enable America to strategically perceive foreign legal developments and, most critically, productively adapt foreign legal experience as an energizing stimulant to our own legal innovation.
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1997425
giovedì 2 febbraio 2012
workshop EUI, The Constitutional Architecture of the Economic Governance in the EU" March 23 2012
The package included in the “Statement by the Euro area heads of State or government” - issued at the end of the European Council held in Brussels on December 9, 2011- proposed a set of measures designed to face the financial crisis: a reinforced architecture for the economic and monetary Union, the strengthening of stabilisation tools, the acceleration of the entry into force of the European Stability Mechanism (ESM) treaty, a stronger policy coordination and governance and, above all, the creation of a new fiscal compact.
The aim of this workshop is to offer a multidisciplinary reflection upon the current crises faced by the EU and the solutions proposed by the European leaders.
We use “crises” instead of “crisis” because it is evident that the EU is experiencing a legitimacy crisis which goes beyond the more general economic and financial difficulties affecting the global system.
In order to favour a rigorous debate on several issues which we consider fundamental, this workshop will be divided into three panels devoted to the impact of the crises on the “domestic” and supranational levels.
Given the highly interdisciplinary content of the subject, we extended the invitation to scholars from different
backgrounds who could address such complex issues from different angles.
In the course of the workshop we would like to address inter alia the following questions:
• Many thought that the Lisbon treaty would be the last one for a long time. Now, instead, it seems old and unable to face the challenges of the crises. What are the competences, powers and institutional mechanisms the EU still needs?
• The relevance of the euro and the different level of integration between the Eurozone countries and the other EU members seemingly indicate the need for a multi-speed or multi-tiered EU. What kind of institutional arrangements can be put in place? Can asymmetry represent a solution for the EU?
• The EU is struggling with its own constitutional limits, putting pressure on national institutions and actors (see the Greek and Italian cases that are emblematic from this point of view): Does this increase or decrease EU legitimacy?
• Against this background, what role can be played by national institutions (i.e. Parliaments, Governments and
Courts)
Full programme available at: http://stals.sssup.it/files/workshop_eudo_institutions-1.pdf
The aim of this workshop is to offer a multidisciplinary reflection upon the current crises faced by the EU and the solutions proposed by the European leaders.
We use “crises” instead of “crisis” because it is evident that the EU is experiencing a legitimacy crisis which goes beyond the more general economic and financial difficulties affecting the global system.
In order to favour a rigorous debate on several issues which we consider fundamental, this workshop will be divided into three panels devoted to the impact of the crises on the “domestic” and supranational levels.
Given the highly interdisciplinary content of the subject, we extended the invitation to scholars from different
backgrounds who could address such complex issues from different angles.
In the course of the workshop we would like to address inter alia the following questions:
• Many thought that the Lisbon treaty would be the last one for a long time. Now, instead, it seems old and unable to face the challenges of the crises. What are the competences, powers and institutional mechanisms the EU still needs?
• The relevance of the euro and the different level of integration between the Eurozone countries and the other EU members seemingly indicate the need for a multi-speed or multi-tiered EU. What kind of institutional arrangements can be put in place? Can asymmetry represent a solution for the EU?
• The EU is struggling with its own constitutional limits, putting pressure on national institutions and actors (see the Greek and Italian cases that are emblematic from this point of view): Does this increase or decrease EU legitimacy?
• Against this background, what role can be played by national institutions (i.e. Parliaments, Governments and
Courts)
Full programme available at: http://stals.sssup.it/files/workshop_eudo_institutions-1.pdf
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