Invisible Lawmaking

Barak Orbach 

University of Arizona
October 3, 2012

University of Chicago Law Review, 2013
Arizona Legal Studies Discussion Paper No. 12-32 
Abstract:      
Private lawmaking is an ordinary rent-seeking activity of interest groups: the pursuit of self-interest through regulation. Motivated private lawmakers take advantage of imperfections in the marketplace of ideas and utilize such imperfections to obscure their visibility. The U.S. Supreme Court’s “marketplace of ideas” theory denies market imperfections and presumes prefect competition in the marketplace. This presumption rests on the Court’s firm premise that the pursuit of self-interest necessarily serves the public. Resting on this unqualified confidence in the pursuit in self-interest, in Citizens United, the Supreme Court has empowered interest groups, strengthening their influence over public lawmakers. This Essay presents how the Supreme Court’s confidence in the inherent value of the pursuit of self-interest has weakened democratic institutions, arming interest groups with effective means to draft the law of the land, while circumventing the public discourse and shortcutting open debates.

Number of Pages in PDF File: 12

Keywords: Private Lawmaking, Rent Seeking, Citizens United, Marketplace of Ideas, Regulation

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2157079

Herbert Hart in Post-Modern International Legal Scholarship

Jean D'Aspremont 

University of Amsterdam
October 2, 2012

Jean d’Aspremont, Jörg Kammerhofer (eds), International Legal Positivism in a Post-Modern World (Cambridge: Cambridge University Press 2013) (Forthcoming) 
Abstract:      
This chapter argues that the most relevant of Hart’s insights for contemporary international legal scholarship are to be found in his reductionism. It contends that the Hartian concept of law is germane to the extent that it helps international legal scholars to restrict international legal positivism to a mechanism for determining the mode of existence of norms; that is, their validity. Hart’s positivism is reductionist in that it confines legal positivism to a theory about the determination of the existence of law by virtue of a theory of sources, i.e. a theory of the ascertainment of rules. In that sense, Hart’s theory renders legal positivism a tool of limited scope which does not lay down a grand theory of law, and which is certainly not a content-determining mechanism.

According to this view, Hart’s Concept of Law is alien to the search for legal certainty and immanent truth as regards the content of law. This is why it is argued here that, from a Hartian perspective, international legal positivism is not about determining the right content of norms and the right adjudicative truth. Instead, international legal positivism should be confined to a thesis about the validity-condition of legal norms.

The Hart-inspired international legal positivism which is put forward here is premised on the idea that international legal positivism is deficient when it comes to deciphering and unraveling the other dimensions of international law such as the creation of subjects, the description of the multi-dimensional phenomenon of law-making or the compliance pull of international legal rules to name only a few. This understanding of international legal positivism simultaneously brings with it a division of tasks among various approaches to international law within international legal scholarship, each of them recognised as having distinct merits that can be mutually reinforcing.

Number of Pages in PDF File: 27

Keywords: international law, international legal theory, Hart, Kelsen, Salmond, legal positivism, critical legal studies, postmodernism, reductionism, formalism, social thesis, source thesis, Article 38, law-ascertainment, social practice, Wittgenstein, cognitive legal positivism, indeterminacy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2155629

Financial Liability of the EU for Violations of WTO Law: A Legislative Proposal Benefiting 'Innocent Bystanders'

Marco Bronckers 

Leiden University - Leiden Law School

Sophie Goelen 

affiliation not provided to SSRN
June 20, 2012

39(4) Legal issues of Economic Integration 399-418 (2012) 
Abstract:      
In this paper we discuss whether the EU may be held liable by individuals for damages they suffer due to a violation of world trade organization (WTO) law by the EU.We focus on European companies whose exports to a third country are suddenly blocked as a result of WTO-authorized retaliation by that country against the EU, for as long as the EU fails to adjust those measures which have been found to infringe WTO law. Typically, the affected European companies are in no way involved in the trade dispute between the EU and a third country, as the dispute normally relates to a completely different sector.The problem that arises here has also been referred to as ‘collateral damage’, or damage to ‘innocent bystanders’. In view of disappointing developments in the European Courts' case law, we propose a legislative solution to compensate innocent bystanders.

Number of Pages in PDF File: 16

Keywords: WTO violations, financial compensation to victims of retaliation, WTO dispute settlement, EU case law on no-fault liability, égalité devant les charges publics, financial compensation and WTO subsidy law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2156906

Proscription of Organisations in UK Counter-Terrorism Law

Sofia Marques da Silva 

King's College London - School of Law

Cian C. Murphy 

King's College London - School of Law
October 8, 2012

Legal Aspects of EU Sanctions, Cameron, ed, Intersentia, 2012 
Abstract:      
The UK has a history of proscribing organisations in the name of national security – with Irish Republican organisations the most well known example. The Terrorism Act 2000 provided new powers of proscription. Since the attacks on September 11 2001 the focus of proscription has been on organisations related to Islamist extremism. This paper will examine the legal framework for the proscription of organisations in the UK and how it has been used. It will consider the process by which proscription is imposed and the means by which it can be challenged. The most common use of proscription today is against organisations that, though dangerous, do not necessarily pose a threat to UK national security. The paper argues that proscription can enshrine in criminal law foreign policy choices of the UK government so as to criminalise support for causes whose illegitimacy is, at the very least, open to contest.

Number of Pages in PDF File: 21

Keywords: counter-terrorism, proscription, September 11 2001, Terrorism Act 2000

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2064048

Larouche on Global Legal Scholarship

A Vision of Global Legal Scholarship

Pierre Larouche 

Tilburg Law and Economics Center (TILEC); College of Europe - Bruges; Tilburg University - Tilburg Law School; Center on Regulation in Europe (CERRE)
October 8, 2012

TILEC Discussion Paper No. 2012-034 
Abstract:      
Global legal scholarship should aim to be both post-national and inter-disciplinary. By post-national, we imply that it should rise above national legal systems and cover a more abstract corpus of knowledge about law, of which national legal systems would be an application. By inter-disciplinary, we mean that legal scholarship is enhanced by a deeper understanding of other sciences, without merging with any of them. This places global legal scholarship in a ‘sweet spot’, between traditional national legal scholarship and other social sciences. In order to retain its strong link with reality, global legal scholarship should also espouse empirical research methods.

Number of Pages in PDF File: 11

Keywords: legal scholarship, global law, comparative law, inter-disciplinarity, empirical

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158638

Compulsory Licensing of Patents: The Bayer/Natco Case

Enrico Bonadio  

City University London - The City Law School ; City University London 

2012

(2012) European Intellectual Property Review (Issue 10), pp. 719-728 

Abstract:    

On 9th March 2012 the Indian Controller of Patents granted the first compulsory licence in India. Indian generics producer Natco Pharma Ltd. has been granted the right to produce and sell in India Bayer’s patented medicine “Sorafenib”, which is useful for treating advanced stage liver and kidney cancer. After a brief introduction on compulsory licenses under the TRIPS Agreement and the Paris Convention, the author verifies whether the decision of the Controller of Patents satisfies the conditions set forth by the these international treaties in relation to compulsory licenses. He concludes inter alia that the ruling might be in violation of the non discrimination principle enshrined in Article 27(1) TRIPS. General comments are also made about the role of compulsory licensing in guaranteeing the availability of patented products to a wide range of consumers and in general the transfer and dissemination of the associated technology.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2157477

Russo on globalization and crossborder cooperation

Globalization and Cross-Border Cooperation in EU Law: A Transnational Research Agenda

Anna Margherita Russo  

Centro de Estudios Políticos y Constitucionales (CEPC) 

October 6, 2012

Perspectives on Federalism, Vol. 4, Issue 3, 2012, E-1-23, 2012 

Abstract:      

This paper aims to analyse a specific dimension of the progressive transformation of the territorial/nation-state law by using the particular lens of cross-border cooperation as regulated under EU law.

In order to do so, I have structured the article into two parts: the first part recalls the main features of the so-called transnational law (polycentrism, non-exclusivity of state actors in the law-making process and in the implementation of legal rules, openness, emergence of hybrid legal phenomena which do not belong - exclusively at least - to the domain of hard or soft law), while the second part analyses the legal framework of cross-border cooperation, trying to locate in this ambit those characteristics of transnational law identified in the first part.

Keywords: cross-border cooperation, globalization, transnational law, European Union, openness, frontier

Full text available:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158075

http://on-federalism.eu/index.php/component/content/article/145-globalization-and-cross-border-cooperation-in-eu-law-a-transnational-research-agenda