Emile Noël Fellows
Academic Year 2011-2012
FULL ACADEMIC YEAR 2011-'12
Roberto Bin is full Professor of Constitutional law at the University of Ferrara (Italy). His current research agenda focuses on theory of the constitution, the constitutional adjudication, the legal sources in the system of the EU law. He is author of some books and articles (the complete list of publications is available at http://www.robertobin.it/bibliografia.htm). He is also co-author (with G. Pitruzzella) of Le fonti del diritto (Bologna, 2009) and of some textbooks on constitutional law (Diritto costituzionale, XI ed., Torino 2010, with G. Pitruzzella), public law (Diritto pubblico, VIII ed., 2010, with G. Pitruzzella), and European institutions (Profili costituzionali dell’Unione europea, Bologna 2008, with P. Caretti). He is member of the editorial board of “Quaderni costituzionali”, “Rivista di diritto costituzionale” and “Le Regioni”, and editor in chief of the on-line journal “Forum di Quaderni costituzionali” (http://www.forumcostituzionale.it).
Legal Text and Judicial Adjudication: What Lawyers Can Learn from Modern Physics
In a seminal article in the Harvard Law Review (The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics, 103 Harv. L. Rev. 1, (1989)), Professor Tribe suggested a new approach in the field of constitutional interpretation: the paradigm shifts in physics caused by Quantum theory, could drive a revision in constitutional jurisprudence too. My current research project develops further this thesis (I have made, in a recent paper, an attempt at investigating some of these questions: it could be read on-line in Italian at http://www.robertobin.it/ARTICOLI/Estratto%20TQ.pdf).
My research project is related to two connected aspects of legal interpretation.
The first aspect attempts to apply the Uncertainty Principle of Heisenberg to the relations among legal interpretation and the legal text. Here, the question is: how interpretation changes the text? In the civil law legal systems courts select the normative acts relevant in the judicial (through the applications of criteria as the chronology, the formal hierarchy, the relevance of arguments as the sedes materiaeetc.): Thus, I wish to explore whether similar processes are relevant in a common law legal system too.
The second aspect is essentially connected with the Principle of Entropy: entropy might explain how legal norms are used by judges in order to derive the “norm of the case”. In this process, arguments as the Verfassungskonforme Auslegung or the interpretation of national law “in accordance with the requirements of EU law”, as well as the judicial recourse to foreign law, cause a characteristic “disorder within the system”. In this disorder the sources of the legal material, used for deriving the “norm of the case”, could lose any relevance. My intent is to explore how motivation of judicial decisions tries to rebuild the relevant information about the sources of the used materials – an effort that could be regarded as infringing the principle that entropy can never decrease.
Pierre Birnbaum is an emeritus professor from University of Paris I where he taught political sociology. He begun his research by working in this field and has been publishing several books on Tocqueville, democracy, political elites and above all, a comparative approach of the State. He then moves toward a comparative approach of contemporary jewish history by using the state as an independent variable explaining different paths of emancipation but also the birth of political antisemitism as a reaction of the presence of Jews within the strong state institutions.
Jewish Supreme Court Judges and the "Wall of Separation"
We propose an analysis of the careers of Louis Brandeis, Benjamin Nathan Cardozo, Felix Frankfurter but also of other Jewish "Scorpions" including Arthur Goldberg, Abe Fortas, Ruth Ginsburg, Stephen Breyer and Elena Kagan, focusing on the positions they took as members of the Supreme Court during the New Deal and latter on, in the sixteeth and the more contemporary period. We would like to look at the meaning of a "Jewish judge" in the US . Whereas previously, some of the Jewish Supreme Court applied the principles of common law, once on the Supreme Court they turned their attention to public law, and the role of the State became fundamental in their decisions during this crucial New Deal period but also later on. We would like to emphasis their decisions dealing mainly with the public space, the State, the State/ Church relations and the question of secularization but also their conflictual relations with some orthodoxes rabbis like Menahem Schneershon, their vision of what it means to be a good American (and Jewish) citizen), their vision of patriotism, for instance, in the famous Gobitis case.
A crucial dimension of this research will be to outline the way those "Scorpions" played a quite unknown but crucial role in the "dechristianisation" of the "Christian nation" dear to Judge Brewer. For instance, from Everson to McCollum, McGowan, Torcaso and even Engel, Frankfurter was able to raised an "absolutist" interpretation of the "wall of separation", helped from outside by some Jewish lawyers like Leo Pfeffer and many Jewish organization like the American Jewish Congress, the American Jewish Commettee but also the ADL and other important organizations in which Jews are quite active in accordance with other non-‐Jewish groups. One main point of this research would be to show that, like in France, a quite different country with a strong state in which many Jews were able to act through the state and its public law, in the US, it is thanks to the Supreme Court, hence in a more recent time, that they have greatly influenced the process of secularization of the "christian nation" which could result in a kind of "naked public space". Frankfurter, the Jewish immigrant, for instance, is the leading actor in the quarrel against the released time, an important one in process leading to the end of the prayer and the Bible reading in the public school. Quite similar in his behavior and values to the french "State Jews", like them he favors a kind of "laïcité" in another time period when, as during the New Deal, we saw an "activist state building".
Damian Chalmers is Professor and Jean Monnet Chair n EU law at the London School of Economics and Political Science. Until August 2010 he was Head of the European Institute as well as of the Jean Monnet Centre of Excellence at the London School of Economics and Political Science. He was formerly editor of the European Law Review and EU Jurist. He has held visiting appointments at, inter alia, the College of Europe, Fundacao Getulio Vargas and the Instituto de Empresa. To view Damien Chalmers' page on the London School of Economics and Politcal Science website look here.
To Thy Transnational Self Be True?
Across the world human beings are confronted by a proliferation of transnational public policies, laws and technical norms which make claims over them and about them but also invariably assertions that they are for their benefits. The forms, subject-matter and language of these policies and laws is extremely diverse. However, if we are to talk of 'transnational', 'international' or 'regional' law in anything other than the most formalistic and empty terms, we have to consider the Public Reason that might inform it. For it is this Public Reason which is central to modern acceptance of legal authority.
Looking in particular at EU law as a particular intense form of transnational law, this research project considers whether there is a distinctive 'transnational' Public Reason which underpins transnational legal authority, and serves to identify and distinguish it from domestic law. It wonders whether much transnational law appeals perhaps more strongly than other forms of law to a particular vision of the Human Condition in which law is predominantly a vessel for a form of secular self-realisation. Individuals are expected to have ever greater choices to exercise an ever greater number of entitlements and take on ever greater responsibilities. If so, this begs the question as to what limits can be put on such a form of Public Reason, and the possibilities other forms of belief and reason offer for contouring and containing it.
Sungjoon Cho is Professor of Law and Norman and Edna Freehling Scholar at IIT Chicago-Kent College of Law. He teaches courses in international law, international trade law, international business transactions, and comparative law. In 2002, he received his S.J.D. (Doctor of Juridical Science) degree from Harvard Law School. Professor Cho's works have been selected for the prestigious Stanford/Yale Junior Faculty Forum twice (2007 and 2008). Professor Cho currently serves as Advisor on International Affairs and Global Industrial Cooperation to the Korean Ministry of Knowledge Economy. He has recently been appointed Visiting Professor of Law at Fordham University Law School (fall 2011) and Northwestern University Law School (spring 2012). Additional biographical information can be found here.
In his research he intends to divulge certain blind spots that rationalism tends to leave behind in its conventional analysis of the World Trade Organization (WTO) due to its inevitable paradigmatic assumptions and methodologies. Sungjoon aims to highlight that the old paradigm, represented by conventional optics (neo-realism and neo-liberalism), is increasingly unfitting, and even anachronistic in the contemporary international trade environment, characterized by global supply chains. As an alternative, the project envisions the "WTO's community" (Gemeinschaft) by employing a "sociological" approach which highlights ideational factors, such as norms and identity, in understanding the WTO as well as its members' behaviors.
Margaret Chon is the Donald & Lynda Horowitz Professor for the Pursuit of Justice at Seattle University School of Law. She explores dimensions of knowledge governance through international intellectual property law. Her current scholarship focuses on the relation of knowledge goods to the production of other global public goods necessary for human development and flourishing. A graduate of the University of Michigan Law School, she is also an alumna of the University of Michigan School of Public Health and Cornell University College of Arts and Science. Additional biographical information can be found here.
Public-Private Partnerships in Global Intellectual Property
The knowledge goods incentivized and protected by intellectual property laws (IP) are public goods that can be more explicitly linked to the optimal production of other global public goods such as disease control, education, environmental sustainability and other aspects of human flourishing within a human development paradigm. IP can be tethered to these other public goods through the potentially more participatory and dynamic legal pathways promised by global governance models. In this research project, I plan to explore governance vectors that play increasingly significant roles in the multiple domains dependent upon knowledge goods. These include non-state actors such as non-profit or non-governmental organizations (NPOs and NGOs), as well as soft law mechanisms, such as licensing arrangements, recommendations or standards set by NPOs, NGOs and intergovernmental organizations. These case studies will build upon prior work examining global IP’s public law frameworks as they address global development goals, but will focus specifically upon the role of public-private partnerships (PPPs) and other civil society strategic alliances within global health (intersecting with the patent regime); global education (copyright); and global environmental and labor domains (trademark). Selected case studies will illuminate further the interplay among the proliferating number of private actors and stake-holders in the shaping of IP regimes for technology partners located in the global north (EU and US) and those in the global south.
Luigi Crema is Assistant of International Law at the Law School of the University degli Studi of Milan.
He graduated summa cum laude in law at the University degli Studi of Milan (2005), and holds a PhD in Public International Law from the universities of Geneva and Milan (joint degree). He has been invited as visiting scholar by the faculties of law at the universities of Neuchatel and Geneva (Switzerland) and Notre Dame (USA). His research has been primarily dedicated to international investment law, transitional justice in Latin America, and treaty interpretation.
The Role of Amicus Curiae in International Law: Purpose, Function, and Future
The proposed research examines the role of amicus curiae briefs in international trials. Its first aim is to provide a restatement of the present contemporary practices regarding amicus curiae: the practice of the WTO, the recent developments on amicus curiae endorsed by NAFTA and ICSID, and the very recent admission of amicus briefs at the ITLOS. The second purpose of the research is to understand certain transformations in international law over recent decades, and to study the way in which different international jurisdictions have adjusted to provide a means for civil society to contribute to legal proceedings. This second strand of research aims to understand the evolution of the international proceeding, and to criticize it, highlighting the peculiarities, the advantages, and the critical points of an international trial in which amicus curiae briefs are admitted.
Rafael Domingo (born 1963; PhD 1987) is Professor of Law and former Dean of the University of Navarra School of Law (Spain). In addition, Professor Domingo currently serves as Director of the Global Law Collection by Thomson Reuters Aranzadi and President of the Maiestas Foundation. Rafael Domingo is a member of the Spanish Academy of Moral Sciences and Politics (Madrid), the Austrian Academy of Sciences (Vienna), and the National Academy of Law and Social Sciences (Cordoba, Argentina). Professor Domingo has a extensive list of publications, including more than ten books and seventy articles and book reviews on ancient Roman law, comparative law, legal history, and philosophy of international law. His most recent book is entitled The New Global Law (Cambridge University Press, 2010). To see a complete CV visit here.
A New Global Paradigm for Religious Freedom
The international community, under the impact of globalization, is being transformed into a new community (novatio communitatis) made up of new members, inspired by new principles, and based on new ideas.
During my research year, I aim to justify the existence of this emerging community using four arguments that can be summarized by the Latin terms: dignitas, usus, necessitas, and bonum commune. I will argue that the new global human community comprises persons, not nation-states; that it is universal in nature; that membership in it is compulsory; and that it is incomplete but complementary to other forms of community. These features of the new global human community will determine both the structure of its legal system and its legal authority.
Barbara Guastaferro obtained a PhD in Constitutional Law from the School of Law of the University of Padua in 2010. She has been teaching “History and Politics of the European Union” at the University of Naples “L’Orientale” (Faculty of Political Science) since 2008. In 2009 she spent a research period at the European Court of Justice in Luxembourg and in 2004 she was intern at the “Permanent Representation of Italy to the European Union” in Brussels, where she assisted the Italian delegation in the follow-up of the Intergovernmental Conference approving the “Treaty establishing a Constitution for Europe”. She is currently a researcher in Public Law and she works as a research associate at the University of Naples “Federico II” (Department of Law and Economics). She has presented several papers and she has published several articles in the fields of European Constitutional Law, EU Law, EU Politics and Political Theory.
Legality and Legitimacy within the EU Legal Order
The assumption underlying my research is that the European Union (EU) is a system of public authority. The principle of legality, indeed, has traditionally served the purpose of limitation or, as Carl Schmitt puts it, of “rationalisation” of power. Nevertheless, its application to the European legal order has not been adequately addressed in scientific literature. Since the EU lacks both legislation stemming from a volonté générale and a hierarchy of norms—due to the so called “unity of secondary law”—many contributions focusing on the evolution of the EU as Rechtsgemeinschaft have emphasized the so-called subjective facet of the rule of law—i.e. the right to an effective legal protection before an independent court—rather than the objective facet of the rule of law—viz. the role of the principle of legality in limiting public authority.
In an attempt to fill this gap, my PhD thesis investigates the Europeanization of the principle of legality against the backdrop of the relationship between EU and national legal orders. It examines the distinctive features of the “supranational legality”, first, and it engages in a critical discussion about the ECJ’s system of “constitutional adjudication” and about the existence of a “constitutional legality” within the EU. As an Emile Noel Fellow, I would try to bolster the last part of my research in which law is relocated among its neighboring disciplines, such as social sciences and political theory. My research efforts will be particularly devoted to focus on the complex relation between law and politics—whose coupling is the very essence of constitutionalism according to Luhmann—within the European legal order.
In other words, the purpose of my research would be to rescue the concept of “legitimacy” in my analysis on the “legality” of the EU legal order, in order to assess if and to what extent it is possible to rebuff the critiques of those considering the EU as a system of “rule of law without democracy”. In this respect, building upon a literature review belonging to what has been referred to as the “normative turn” in EU studies, I will try to address the following research questions:
- What is the relation between pouvoir constituant, pouvoirs constitués and pouvoir commettant in the EU legal order?
- Is it possible to sketch a distinction between jurisdictio and gubernaculum in the EU legal order? (i.e. are the Member States completely free in acting as “Masters of the Treaty” or there are explicit/implicit limits to the amendment procedure envisaged by Article 48 TEU?)
- What is the connection between democracy and “constitutional adjudication” in the EU?
Rike Kraemer is a research associate at the Collaborative Research Center 597 “Transformations of the State” at the University of Bremen. She is member of its research project “Political Autonomy in the EU Multi-level Legal System”. She received her First and Second State Exam in Bremen and has been trained in Germany and in the Netherlands. She has taught courses in law as well as in political science at the University of Bremen. She has actively advised environmental NGOs and other groups on issues of WTO and EU law. In addition, between 2009 and 2011 she has been one of the equal opportunity officers of the research center “Transformations of the State”.
Her research interests fall broadly in the field of international and European economic law and governance, environmental law in general as well as constitutional law. Her current work focuses on the coordination of environmental policy goals in trade law, especially in the field of procurement and subsidy law.
Diagonal Conflicts in WTO, EU and U.S. Procurement and Subsidy Law
The shift of trade agreements towards national regulatory issues has contributed to the rising relevance of diagonal conflicts. These kind of conflicts between different policy goals pursued at different levels of governance have been extensively discussed in the "trade and" literature. Yet, the existing scholarly debate has focussed on the implications of trade and goods, while largely neglecting the liberalization of subsidies and procurement regimes; however, lately these fields of law have become more important as instruments of environmental policy. Instead of command-and-control instruments, incentive-based or market-based regulations are gaining importance in environmental policy today. Both procurement and subsidy law are market-based regulations with a strong potential to enhance environmental protection. The research addresses the question, how conflicts between economic and environmental policy goals have been solved, prevented, or otherwise dealt with in federal-type political systems, such as the EU and the United States, comparing the findings with the WTO level.
George Letsas is the Director of the UCL Institute for Human Rights and Reader in Philosophy of Law & Human Rights at University College London (UCL), Faculty of Laws. He is the co-editor of Current Legal Problems, published by Oxford University Press, the co-convenor of the Oxford-UCL Colloquium in Legal and Political and co-chair of the UCL Colloquium in Legal and Social Philosophy since 2006. His main areas of research are European human rights law, the philosophy of human rights, interpretation of human rights treaties, philosophy of private law, jurisprudence and political philosophy. He is the author of numerous articles and of the monograph A Theory of Interpretation of the European Convention on Human Rights (2009), Oxford University Press.
Proportionality and Fundamental Rights: Against Orthodoxy
During his NYU stay, George Letsas will be working on a research project on ‘Proportionality and the Law’. The aim of the research project is to give an account of the principle of proportionality as it figures in different areas of law (human rights, criminal law, war law) with a view to identify the diverse moral principles that operate under that heading. The aim is to show that there is no single moral principle picked out by judicial uses of proportionality and that both the critics and the supporters of proportionality misunderstand its normative role, particularly in the context of human rights review.
Armin von Bogdandy is Director at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Professor of Public Law at the Goethe-Universität, Frankfurt/Main. He is President of the OECD Nuclear Energy Tribunal. He was member of the German Science Council (Wissenschaftsrat). In June 2008 Prof. Bogdandy received the Berlin-Brandenburgian Academy of Sciences Prize for outstanding scientific achievements in the field of foundations of law and economics, sponsored by the Commerzbank Foundation. Member of the Scientific Committee of the European Union Agency for Fundamental Rights (2008-2013). He was invited to be the Inaugural Fellow at the Straus Institute for Advanced Study of Law and Justice, New York University, Academic Year 2009/2010. He was Global Law Professor at New York University School of Law in 2005 and 2009. And appointed as a Senior Emile Noël Fellow from Global Law School Personnel Committee of the New York University (2010-2015).
Developing the Publicness of Public International Law
The research project aims to develop a distinctly public law approach to the deep transformation in the conduct of public affairs epitomized by the term global governance. I am intrigued to find in many policy fields an increasing number of international institutions playing an active and often crucial role in decision-making and policy implementation, sometimes even affecting individuals. Although the discourse on global governance provides important new perspectives on phenomena of international cooperation, it is deficient from a public law perspective as the concept of global governance does not allow for the identification of what the focus of a legal discourse should be, i.e. those acts by which unilateral authority is exercised. Such unilateral authority is the greatest challenge to the basic principle of individual freedom. Public law, at least in a liberal and democratic tradition, concerns the tension between unilateral authority and individual freedom, and is a necessary requirement for the legitimacy of public authority, which is both constituted and limited by public law. In order to provide a basis for legal analysis and to identify phenomena that need justification, the project is focusing on the exercise of international public authority. Any kind of governance activity by international institutions, be it administrative or intergovernmental, should be considered as an exercise of international public authority if it determines individuals, private associations, enterprises, states, or other public institutions. This concept shall enable the identification of all those governance phenomena which public lawyers should study. Proposing this concept means complementing the concept of global governance with a concept more appropriate for legal analysis and the development of legal standards for legitimate governance. On a more general level, this concept should contribute to a deeper understanding of the historic transformation underlying the concept of global governance. On this basis a public law approach to the exercise of international public authority is to be developed. This shares the aim to better understand and develop the law relating to international governance activities with recent streams of legal research such as the Global Administrative Law movement, the research on an emerging international administrative law, as well as the debate surrounding the constitutionalization of international law. It holds that a synthesis of these approaches is best suited to provide a meaningful framework for analysis and critique.