Autumn/Winter 2011

Autumn/Winter 2011 - Volume 4 - Issue 2


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Catch Me If You Can? The Market Freedoms’ Ever- expanding Outer Limits

By: Pedro Caro de Sousa   UK - Download PDF Version Download pdf (UK)

This Article submits that questions of institutional ability and legitimacy should play a more important role in the Court of Justice’s decision-making process. In effect, boththe legal literature and the Court’s reasoning process tend to disregard such questions, thereby ignoring relevant comparative institutional choices which take place whether they are acknowledged or not. The deficiencies arising from the current approach will be exemplified by an analysis of developments in EU‘s free movement law on the requirements of cross-border elements, economic aim of free movement, and on the complementarity of these two requirements. In particular, it will be argued that the absence of properly reasoned institutional comparative analysis, when coupled with under-theorised normative foundations and the introduction of European Citizenship, has potentially explosive consequences for the scope of the EU’s market freedoms.

The “Retained Powers” Formula in the Case Law of the European Court of Justice: EU Law as Total Law?

By: Loïc Azoulai   UK - Download PDF Version Download pdf (UK)

The case-law of the European Court of Justice is full of standard formulas. This articleanalyses one such formula, the so-called ‘formula on retained powers’ according to which the scope of application of EU law extends to subject areas over which Member States are supposed to have retained powers. It attempts to trace it back through the line of ECJ decisions, to analyse the specific components and arguments encapsulated in it, and to identify its justifications and effects. It is argued that the recurrence of this judicial formula amounts to the emergence of a new doctrine in EU law called the ‘total law doctrine’ based on both the recognition of the essential own capacities of the Member States within the integrated European space and on the requirement to include certain under-protected interests and situations in the manner national authorities usually use to think and to act.

A Bayesian Model of the Litigation Game

By: F.E. Guerra-Pujol   UK - Download PDF Version Download pdf (UK)

Over a century ago, Oliver Wendell Holmes invited scholars to look at law through the lens of probability theory: ‘The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law’. But Holmes himself, and few others, have taken up this intriguing invitation. As such, in place of previous approaches to the study of law, this paper presents a non-normative, mathematical approach to law and the legal process. Specifically, we present a formal Bayesian model of civil and criminal litigation, or what we refer to as the ‘litigation game’; that is, instead of focusing on the rules of civil or criminal procedure or substantive legal doctrine, we ask and attempt to answer a mathematical question: what is the posterior probability that a defendant in a civil or criminal trial will be found liable, given that the defendant has, in fact, committed a wrongful act?

Legal Application, Global Legal Pluralism and Hierarchies of Norms

By: Jean-Sylvestre Bergé   UK - Download PDF Version Download pdf (UK)

In a context of global legal pluralism, the application of the law can be analysed at several levels, namely national, international and regional. At each level, legal systems are organized around different normative hierarchies. This raises questions regarding the articulation of these constructions in a multilevel perspective of legal application that is both practical and theoretical. To answer these questions, two approaches are imaginable: a first that studies the application of normative hierarchies, level by level and, beyond that, legal system by legal system; a second that aims to make explicit the interactions that can result from the coexistence of different normative levels. This study favours the second approach while attempting to appreciate the material and formal utility of normative hierarchies each time a jurist questions the application of the law at different levels. Two conclusions can be drawn from this study: there is a plurality of normative hierarchies in a context of global legal pluralism; in a process of multilevel legal application, normative hierarchy coexists with other methods of reasoning.



By: Benedict S. Wray   UK - Download PDF Version Download pdf (UK)


Regulation that Defies Gravity - Policy, Economics and Law of Legal Immigration in Europe

By: Anna Kocharov   UK - Download PDF Version Download pdf (UK)

This article offers an assessment of EU directives in the field of legal immigration in the light of the Union’s own claims of economic rationale behind its immigration policy. While stopping short of economic analysis of law, the work pinpoints the areas of EU immigration law of relevance to economists in future immigration research in the European context, and to policy makers when enacting immigration laws. It is argued that, contrary to the political discourse, EU immigration law is inconsistent with the objectives of EU immigration policy and fails to take into account economic rationales for migration.

Inroads to Social Inclusion in Europe’s Social Market Economy: The Case of State Aid Supporting Employment of Workers with Disabilities

By: Delia Ferri, Mel Marquis   UK - Download PDF Version Download pdf (UK)

Since the 1990s if not earlier, the asymmetry in the European Community/European Union between market-making free trade rules and distributive mechanisms sometimes known as ‘the social’ has been perceived by many as at least a potential factor contributing to a legitimacy crisis in European integration. There are no easy solutions to this state of affairs, but the European Union can take small steps toward an enhanced equilibrium. A small but potentially important step was taken in the Lisbon version of the Treaty on European Union, when the notion of a ‘social market economy’ was explicitly embraced. But what do these alluring words mean? They are left formally undefined and they have been freed, we submit, from their historical and conceptual moorings. It is up to European practice and scholarship to determine whether and how the idea will take on a life of its own in its new context. In this paper we consider a narrow but not insignificant policy field that suggests itself as a possible example of Europe’s social market economy principle in action, namely, the use of state aid rules to encourage Member States to support the hiring and accommodation of persons with disabilities. In exploring the legal norms and policy in this area, we put forward some tentative suggestions about how the idea of a social market economy for Europe might be framed as the EU passes through the next phase of the integration project.

EU Citizenship as a Battle of the Concepts: Travailleur v Citoyen

By: Panos Stasinopoulos   UK - Download PDF Version Download pdf (UK)

Ever since Citizenship was introduced at EU level, the concept’s perception has varied from a mere declaratory status to a more substantial, fundamental status attached to Europeans. Regardless of whether one views Citizenship as the latter or the former of the above construes, this concept is undoubtedly intriguing and is still the subject of discussions and studies. This paper wishes to contribute to the debate regarding the concept of Union Citizenship and its future and relevance in today’s EU. The scope of the notion has been enriched considerably since its conception, as a result of the work of the Court of Justice although the Treaty provisions have not reflected this and they remain largely unchanged since 1993. Owing to said case-law, different constructions of Citizenship have been proposed in the academic literature; this paper focuses on the nature of the relationship between Union Citizenship and the pursuit of an economic activity and the relative independence the former enjoys owing to the recent CJEU case-law. This independence will be assessed in three parts, covering this content of Citizenship which supports the latter’s independence, its arguably receding association with the common market and its aims, and the support which the Lisbon Treaty’s new stance on social values could potentially offer.

Citizenship, Migration and Regional Integration: Re-shaping Citizenship Conceptions in the Southern Cone

By: M. Belén Olmos Giupponi   UK - Download PDF Version Download pdf (UK)

The paper examines the relation between citizenship and regional migrations in recent legislative changes in Argentina from a comparative perspective. The article discusses how these legislative changes are shaping a new migration paradigm and conceptions of citizenship; providing with relevant information about migration and citizenship in the Common Market of the Southern Cone (MERCOSUR). The article first gives a general review of the literature on citizenship and migration, with a focus on Latin America. In this framework, the contribution explores the factors which have driven recent legislative changes on migration and citizenship in Argentina and their implications in the light of the Supreme Court's case law on migrant’s rights and access to citizenship. The article further underlines the impact of MERCOSUR regulations on migration and citizenship issues at internal level

Illegality Regimes and the Ongoing Transformation of Contemporary Citizenship

By: Juan M. Amaya-Castro   UK - Download PDF Version Download pdf (UK)

This article introduces the notion of ‘illegality regimes’ and argues that the creation, enhancement, and strengthening of these regimes has a transformative, and perhaps even corrosive effect on the meaning and value of citizenship itself. The notion of illegality regimes refers to the complex normative and policy framework that is either intended to, or otherwise has the effect of marginalizing or otherwise excluding irregular migrants, and to assist the authorities in the process of localizing and deporting them. Much of the political and scholarly attention in the context of illegality is focused on how illegality regimes affect migrants and refugees, how these regimes weaken their human rights, and generally run contrary to liberal principles such as equality before the law and non-discrimination. However, the objective here is to explore how it is not just the undocumented migrant that is directly or indirectly affected by the illegality regimes, but also regular migrants, asylum seekers, and finally full citizens themselves. The ways in which this happens is by a progressive transformation of what it means to be a citizen, and by means of a re-accommodation of the relation between the citizen and the state. As globalization unleashes migratory processes, the state adapts. Citizenship adapts along.

Book Reviews

Corporate Governance or Corporate Government? (Pepper D. Culpepper, Quiet Politics and Business Power)

By: Benjamin Farrand   UK - Download PDF Version Download pdf (UK)

‘Quiet Politics and Business Power: - Corporate Control in Europe and Japan’Anchor is the new book by Professor Pepper D. Culpepper, currently based at the European University Institute in Florence, Italy. In this ambitious work, Culpepper seeks to address the question of how corporate interests can shape policy. In order to do so, the book adopts a case-study methodology, analysing how corporate actors have been able (or not) to influence the development of law relating to corporate governance and hostile takeovers, focusing on examples taken from France, Germany, the Netherlands and Japan. While being a work that falls categorically into the field of political sciences, it nevertheless is of value to lawyers and legal academics who wish to go beyond the question of what corporate governance is, and ask why corporate governance develops in a certain way.

European Readmission Policy: Third Country Interests and Refugee Rights

By: Stephen Coutts   UK - Download PDF Version Download pdf (UK)  |  - Download PDF Version Download pdf (UK)

In this, the published version of his PhD thesis, Nils Coleman provides the first dedicated account and analysis of the EU’s readmission policy and in particular assesses its compatibility with fundamental rights in the area of asylum law. In doing so he combines a legal analysis with a sophisticated presentation of the policy dynamics in this crucial and developing area of EU law and policy. It will, without a doubt, be a useful addition to the literature in the field and will be of interest to practitioners and academics working in the external relations of the EU, immigration and asylum law and policy, and questions of fundamental rights and the EU more broadly.

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