Ugo Mattei and Fernanda Nicola (American Univ. Law School) have published an article titled "A 'Social Dimension' in European Private Law?" (portions originally delivered as a lecture at the New England School of Law). Here is the abstract:
This Article aims to show what the political, rather than the technical stakes, are in the current debate over the harmonization of private law in Europe. Part One analyzes the main actors, the legal sources, the ideological divide, and the process animating the current debate on European private law. It sheds light on the incremental transformation of European private law in a scholarly industry. Part Two sheds light on the main obstacles and inconsistencies that jurists encounter in envisioning a Social private law. This section argues that the notion of the "Social" in private law scholarship as well as the idea of "Social Europe" is rarely a useful notion to articulate a progressive agenda for European private law. We argue that a progressive agenda for European private law can be conceived today as a significant platform only by breaking with the current hegemonies and ideologies, as well as by unveiling the transformation of European private law into a scholarly industry.
The cite is 41 New England L. Rev. 1 (2006) (but just off the press).
Thursday, September 27, 2007
Leib on Interpretation and the Different Types of Direct Democratic Process
Ethan Leib has just posted a paper on SSRN that discusses why interpretive methodology should vary as between initiatives on the one hand and statutes enacted by way of referenda on the other. The paper is called "Interpreting Statutes Passed Through Referendums." Here is the abstract:
Those focused on the questions surrounding how courts ought to interpret the statutory products of direct democracy pay relatively little attention to the variety of processes that could give rise to such laws. There are two core processes of direct democracy that produce statutes, though the specific mechanics vary in the manystates that employ them: the referendum and the initiative. Generally speaking, the referendum enables citizens to ratify or reject statutes passed by a legislature, while the initiative enables citizens to draft laws themselves and put them before the populace for a vote. My focus here is the question of the appropriate interpretive approach for statutes subject to the popular vote. By and large, scholars have focused almost exclusively on the direct initiative when they discuss how courts should interpret the products of direct democracy. But courts are saddled with the task of interpreting a broader array of statutory enactments subject to direct democracy. A uniform method of interpretation - one that finds support in many judicial pronouncements - might be defended on the ground that it makes no difference which directly democratic process leads to a law under consideration; irrespective of process, the interpretive inquiry should remain constant. That uniform method could be supported by an assumption that the processes of direct democracy are similar enough to warrant similar treatment for purposes of interpretation. Or it could be supported by an assumption that all forms of direct democracy are underwritten by a political theory that counsels for similar statutory interpretation. I argue here that the uniform method, whatever support it might find in caselaw, is flawed.
Here is the link to the download: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1017062
Those focused on the questions surrounding how courts ought to interpret the statutory products of direct democracy pay relatively little attention to the variety of processes that could give rise to such laws. There are two core processes of direct democracy that produce statutes, though the specific mechanics vary in the manystates that employ them: the referendum and the initiative. Generally speaking, the referendum enables citizens to ratify or reject statutes passed by a legislature, while the initiative enables citizens to draft laws themselves and put them before the populace for a vote. My focus here is the question of the appropriate interpretive approach for statutes subject to the popular vote. By and large, scholars have focused almost exclusively on the direct initiative when they discuss how courts should interpret the products of direct democracy. But courts are saddled with the task of interpreting a broader array of statutory enactments subject to direct democracy. A uniform method of interpretation - one that finds support in many judicial pronouncements - might be defended on the ground that it makes no difference which directly democratic process leads to a law under consideration; irrespective of process, the interpretive inquiry should remain constant. That uniform method could be supported by an assumption that the processes of direct democracy are similar enough to warrant similar treatment for purposes of interpretation. Or it could be supported by an assumption that all forms of direct democracy are underwritten by a political theory that counsels for similar statutory interpretation. I argue here that the uniform method, whatever support it might find in caselaw, is flawed.
Here is the link to the download: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1017062
Tuesday, September 18, 2007
Bisharat on Academic Freedom in the Middle East
George Bisharat has published this op-ed in the Baltimore Sun on what he calls the "double standard" on academic freedom in the Middle East: http://baltimoresun.com/news/opinion/oped/bal-op.boycott17sep17,0,4476313.story
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