February 13, 2016

Antoine Vauchez on the State of Emergency in France and the Dual Role of the Conseil d'Etat as Advisor to and Judge of Administrative Action

Network member Antoine Vauchez (CNRS) has alerted us to a post on his blog Do You Law? at the Paris daily Libération.  Entitled "Le Conseil d'Etat ou le verrou du Palais royal" ("verrou" meaning "deadbolt" or "safety lock" and the "Palais royal" being the location of the CE in Paris), in this piece Antoine poses the perennial question: "Can the French administrative judge pronounce on the law and also advise those who exercise power?  The question presents itself with acuity as the government prepares to seek a new extension of the state of emergency."  A translation of the opening lines is below and the remainder may be read (in French) here.

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The state of emergency has placed the Conseil d'Etat at the forefront of the antiterrorist response. With the unprecedented expansion of administrative powers and the marginalization of the ordinary courts, the administrative judge has the delicate mission of giving voice to the demand for rights and freedoms at the heart of a counter-terrorism policy whose excesses have already been noted in many respects. With its position at the heart of the administrative machinery, however, the Conseil d'Etat seems poorly misplaced to fully accomplish this essential task.

In the current phase of the antiterrorist struggle, the members of the Conseil d'Etat occupy a pivotal position.  Placed all along the chain of state action, from its policy conception to its legal control, these members form both the state's infrastructure and its safety lock (verrou) ... 

February 8, 2016

Duina and Lenz on diffusion of legal and judicial designs across regional economic organizations

Network member Francesco Duina (University of British Columbia & Bates College) and co-author Tobias Lenz (European University Institute and Göttingen University) have just published an article in the Review of International Studies, entitled "Regionalism and diffusion revisited: From final design towards stages of decision-making."  The piece aims to refine the concept of diffusion of legal and judicial designs across regional economic organizations (such as the EU, Mercosur, NAFTA, etc.).  The abstract is below and the full article can be accessed here.

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An emerging research programme on diffusion across regional international organisations (RIOs) proposes that decisions taken in one RIO affect decision-making in other RIOs. This work has provided a welcome corrective to endogenously-focused accounts of RIOs. Nevertheless, by focusing on the final design of policies and institutional arrangements, it has been conceptually overly narrow. This has led to a truncated understanding of diffusion’s impact and to an unjustified view of convergence as its primary outcome. Drawing on public policy and sociological research, we offer a conceptual framework that seeks to remedy these weaknesses by disaggregating the decision-making process on the ‘receiving’ side. We suggest that policies and institutional arrangements in RIOs result from three decision-making stages: problematisation (identification of something as a political problem), framing (categorisation of the problem and possible solutions), and scripting (design of final solutions). Diffusion can affect any combination of these stages. Consequently, its effects are more varied and potentially extensive than is currently recognised, and convergence and persistent variation in scripting are both possible outcomes. We illustrate our framework by re-evaluating research on dispute settlement institutions in the EEC, NAFTA, and SADC. We conclude by discussing its theoretical implications and the conditions that likely promote diffusion.

February 3, 2016

Thomas Streinz on Human Dignity and Constitutional Identity in the Bundesverfassungsgericht

New network member Thomas Streinz (NYU) has alerted us to an intriguing decision of the Bundesverfassungsgericht, Case 2 BvR 2735/14, published last week, which adds another chapter to the ongoing saga of the complex relationship between Karlsruhe and Luxembourg. 

Thomas' perceptive analysis of the decision is below.  The decision (in German) can be found here, and the English press release is available here.

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The present decision concerns the classic problem of fundamental rights protection against acts of EU law that gave rise to the Solange I+II decisions. There had been rumors about an impeding “Solange III” decision for some time, but a closer look reveals that the German Constitutional Court uses a different tool out of its how-to-check-EU-law-toolbox: Identitätskontrolle. The Court held that human dignity -- as the paramount value under German constitutional law, and thus part of its constitutional identity -- needs to be safeguarded by precluding the enforcement of a European arrest warrant against an American citizen who was sentenced to 30 years in prison in absentia in Italy.

January 25, 2016

Davor Jancic on the Roles of the US and EU Legislatures in Shaping Transatlantic Interactions

Network member Davor Jancic (T.M.C. Asser Institute) has recently published two articles on transatlantic relations, TTIP, regulatory cooperation, extraterritoriality, and the roles of the European Parliament and the US Congress.  The first article is published in the Cambridge Yearbook of European Legal Studies, entitled “Transatlantic Regulatory Interdependence, Law and Governance: The Evolving Roles of the EU and US Legislatures” and freely accessible until February 2016. The second has just been released in Early View with the Journal of Common Market Studies, entitled “The Role of the European Parliament and the US Congress in Shaping Transatlantic Relations: TTIP, NSA Surveillance and CIA Renditions.” 

Full texts can be found at the links above; abstracts are below.

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Abstract: Transatlantic Regulatory Interdependence, Law and Governance: The Evolving Roles of the EU and US Legislatures

This article analyses the roles of the European Parliament and the US Congress in addressing regulatory interdependencies arising in the EU–US strategic partnership. It examines their international actorness as a potential remedy for the problems of democratic participation, executive dominance, and opaqueness in the shaping of transatlantic relations. It shows that legislatures significantly contribute to regulatory discrepancies and trade disputes and that the adverse consequences thereof justify more intensive ex ante cooperation between them. The analysis conducts two groups of case studies to demonstrate how the EP and Congress influence law and policy in areas of transatlantic regulatory and foreign policy divergence. The first group of case studies analyses parliamentary involvement in the making of international agreements (TTIP and ACTA). The second group of case studies inspects legislative action with extraterritorial effects (US Helms–Burton and Sarbanes–Oxley Acts). The article argues that the EP and Congress have so far frequently acted against the spirit of the strategic partnership in ways that are injurious to the interests of the other side, and discusses whether an interparliamentary early warning mechanism could reduce legislative and political frictions and increase the coherence of transatlantic lawmaking.

Abstract: The Role of the European Parliament and the US Congress in Shaping Transatlantic Relations: TTIP, NSA Surveillance and CIA Renditions

This article analyses the manner in which the parliaments of the EU and the US – two key global strategic partners – participate in the shaping of transatlantic relations. The article argues that the European Parliament (EP) and Congress aim not only to influence their executive branches but also to act autonomously in the transnational arena through parliamentary diplomacy. They seek to secure concessions both formally by scrutinizing transatlantic international agreements, such as TTIP, as well as informally by exposing injustices and diplomatic misconduct through human rights advocacy and institutional pressure, such as in the cases of the NSA surveillance and CIA renditions. The article demonstrates that the EP and Congress have created capacities for internal scrutiny and transnational interparliamentary dialogue and that they utilize their consent powers to make claims, condition transatlantic negotiations and gain greater presence, visibility and influence in international affairs.

January 19, 2016

Call for Panels and Papers: 2016 ICON-S Conference in Berlin (June 17-19, 2016)

Network member Gráinne de Búrca (NYU) has written to share with us a call for panels and papers for the 2016 ICON-S Annual Meeting and conference, to be held in Berlin at the Humboldt University on June 17-19, 2016.  The theme for this year's conference will be "Borders, Otherness, and Public Law."  An extract from the call for panels and papers is provided below; the full version can be found here.  Note that proposals are due by February 15, 2016.

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Call for Panels and Papers: "Borders, Otherness, and Public Law"

ICON-S, the International Society of Public Law, invites paper and panel submissions for its 2016 Annual Meeting to be held at the Humboldt University, Berlin, Germany, on June 17-19, 2016.

January 18, 2016

Dan Kelemen in Foreign Affairs: Europe's Autocracy Problem

Network member Dan Kelemen (Rutgers) has a new article out in Foreign Affairs.  Co-authored with Mitchell Orenstein (UPenn), and entitled "Europe's Autocracy Problem: Polish Democracy's Final Days?," the article explores Poland's slide toward autocracy and the role played by EU inaction in bringing it about.  The first paragraph follows; the full version can be found here.

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Winter has come to Europe, but it seems to be springtime for the continent’s autocrats. Following the example of the Hungarian Prime Minister Viktor Orbán and his Fidesz Party, Poland’s new government, led by the nationalist-populist Law and Justice party (PiS), has launched assaults on the country’s judiciary and public media, putting Polish democracy and the rule of law at risk. In December, tens of thousands of Poles demonstrated against the government’s illiberal actions; European Commission officials, meanwhile, have promised to investigate whether the developments in Poland constitute a “systemic threat” to the rule of law there. Unsurprisingly, Jaroslaw Kaczynski, the leader of the PiS, has dismissed the protestors as traitors and rejected criticism from abroad.

The article continues here.

January 13, 2016

Meunier, Kelemen, and Jones on "Failing Forward" and the Euro Crisis

Network members Sophie Meunier (Princeton) and Dan Kelemen (Rutgers), along with friend of the network Erik Jones (Johns Hopkins), have a new article out with Comparative Political Studies on "Failing Forward: The Euro Crisis and the Incomplete Nature of European Integration."  The article focuses on the incompleteness of the framework of European monetary integration, and explores the role this has played in causing -- and in impeding the response to -- the recent euro crisis.  The full text is available online here and will be published in hard copy later this year.  The abstract follows.

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The European Union (EU) project of combining a single market with a common currency was incomplete from its inception. This article shows that the incompleteness of the governance architecture of Europe’s Economic and Monetary Union (EMU) was both a cause of the euro crisis and a characteristic pattern of the policy responses to the crisis. We develop a “failing forward” argument to explain the dynamics of European integration using recent experience in the eurozone as an illustration: Intergovernmental bargaining leads to incompleteness because it forces states with diverse preferences to settle on lowest common denominator solutions. Incompleteness then unleashes forces that lead to crisis. Member states respond by again agreeing to lowest common denominator solutions, which address the crisis and lead to deeper integration. To date, this sequential cycle of piecemeal reform, followed by policy failure, followed by further reform, has managed to sustain both the European project and the common currency. However, this approach entails clear risks. Economically, the policy failures engendered by this incremental approach to the construction of EMU have been catastrophic for the citizens of many crisis-plagued member states.

Book Announcement: Lucas Bergkamp, Civil Liability in Europe for Terrorism-Related Risk (Cambridge 2015)

We are pleased to announce that network member Lucas Bergkamp (Hunton & Williams) has co-written a new book entitled "Civil Liability for Terrorism-Related Risk," published by Cambridge University Press.  The book analyzes liability for risks related to terrorism under international, EU, and Member State law, and a series of related matters, from insurance to contractual limitation of liability.  The publishers' blurb is below; further information can be found here or obtained from Lucas.

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Today terrorism has become a world-wide phenomenon which does not stop at the European borders. Following the 9/11 attacks on the World Trade Center and terrorist attacks in Paris, Madrid and London, concerns have arisen in Europe about potential liability exposure for terrorism-related damage. This book tackles the problem of civil liability for damage caused by terrorist acts from several angles. The authors expertly deliver a comprehensive analysis of terrorism-related risk under international and EU law and the national tort law systems of seven representative EU Member States. They also provide a comparison of the situation in Europe to the liability environment in the US. Risk mitigation strategies are considered and critically assessed, as are alternative systems for redressing terrorism-related risks. The book concludes with a reflection on the analysis and presents possible strategies for future regulation by the European lawmakers.

January 12, 2016

Henry Farrell and Abraham Newman in Foreign Affairs: "The Transatlantic Data War: Europe Fights Back Against the NSA"

Network member Abraham Newman (Georgetown) has published an article (with Henry Farrell of George Washington University) in Foreign Affairs entitled "The Transatlantic Data War: Europe Fights Back  Against the NSA". The first paragraphs are below and you may read the remainder here.

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Last October, the European Court of Justice struck down the Safe Harbor Agreement, a 15-year-old transatlantic arrangement that permitted U.S. companies to transfer data, such as people’s web search histories or personnel records, outside of the EU. In invalidating the agreement, the ECJ found that the blurry relationship between private-sector data collection and national security in the United States violates the privacy rights of EU citizens whose data travel overseas. The decision leaves U.S. tech companies with extensive international operations on shaky legal ground.

Although some informed American observers anticipated the decision, most were caught flat-footed; some seemed downright bewildered. The vice president of the US Chamber of Commerce, Myron Brilliant, responded in shock that “it is particularly alarming that this long-standing agreement has been invalidated with no discussion of a transition period or guudence regarding how companies should comply with the law…” Critics of the decision, including Commerce Secretary Penny Pritzker, argue that it will devastate the transatlantic digital economy, costing U.S. firms billions of dollars. Without a new agreement, there is a significant risk that personal data will have to be quarantined within Europe, creating, as Alphabet Chairman Eric Schmidt warned in his response to the decision, “per-country-Internets”. If that occurred, he continued, it could risk destroying “one of the greatest achievements of humanity.” Critics charge that the EU is acting unilaterally to protect its businesses against foreign competition, damaging the open, democratic nature of the Internet.

But the main reason that U.S. companies and officials are flustered is that they are used to being the ones who make the rules. Over the past 70 years, the United States has built a global system in which trade, investment, and information move quickly and easily across borders. That openness has created an interdependent world in which the national rules and preferences of one country can shape the rules and preferences of others. The outsized power of the U.S. economy usually gives that role to the United States.

In the aftermath of the 9/11 attacks, the United States began to exploit interdependence, deliberately using its economic power as an instrument of national security. Despite advocating for free flows of capital, it has systematically used sanctions to oblige foreign banks and financial actors to isolate people, businesses, and states from the global financial system. Despite publicly promoting an open and secure Internet, it has privately undermined online communications and surreptitiously created vast international surveillance systems in cooperation with close allies including the United Kingdom. In short, the United States has leveraged the world’s reliance on its economy to influence and spy on foreigners.

This strategy is reaching its limits, and the Safe Harbor decision powerfully demonstrates that Washington needs to wake up to its costs… [continue reading here]

Kim Scheppele in Politico: "EU can still block Hungary’s veto on Polish sanctions"

Network member Kim Scheppele (Princeton) has a new piece in Politico.eu entitled 'EU can still block Hungary’s veto on Polish sanctions'.  An excerpt of the opening paragraphs are below and the remainder can be read here.

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The Law and Justice government in Poland stormed into office with rash plans to disable the Constitutional Court, muzzle the media, fire a wide swath of civil servants, politicize independent institutions and seize partisan control of the military. This has set off alarm bells in Brussels, where the European Commission has listed the Polish crisis on the agenda for its plenary meeting January 13 and the European Parliament has scheduled Poland for a debate January 19.  Talk of “Article 7” is in the air.


Following Hungary’s moves to disable the checks and balances of its constitutional system, Poland is now the second state to have generated a threat to use Article 7. But precisely because Poland is following Hungary, the harshest sanctions available under Article 7 have already become nearly impossible to use.  [continue reading here]