Lauren Carasik, Renaissance or Retrenchment: Legal Education at a Crossroads

Lauren Carasik, Renaissance or Retrenchment: Legal Education at a Crossroads, Indiana Law Review, Vol. 44, p. 735, 2011; Western New England University School of Law Legal Studies Research Paper No. 11-3. Available at SSRN

Abstract:

This Article begins to synthesize the literature criticizing the current state of legal education with the scholarship proposing solutions, and argues that whatever review is undertaken must be expansive, with a careful and critical look at how each piece supports the endeavor. None of the ideas discussed, taken alone, are novel, as scholarship abounds on all of the topics. Considered together, the analysis suggests that a comprehensive and holistic approach to reform is necessary. In essence, the goal is to catalyze a wholesale reconsideration of the very foundation of legal education. Many of the seemingly disparate themes comprise a Gordian Knot and cannot be rectified in isolation. Accordingly, the whole enterprise of legal education must be deconstructed, from how law schools recruit and admit law students to how lawyers are licensed, because the process supports a self-reinforcing and self-perpetuating system and culture that fails to serve law students and the society in which they will operate as professionals. The Author hopes this engenders a conversation that is unfreighted by and decoupled from history and compels legal educators and professionals to step back and critically assess how to restructure legal education by focusing on the best interests of law students instead of perpetuating the privilege and luxury of legal academia. Given the well-documented emotional and fiscal price that legal education is exacting from law students, it is unconscionable to maintain the status quo. After lamenting the current conditions that law students confront, one commentator noted that “[a]t some point, law professors can no longer disclaim responsibility for the harmful consequences of this enterprise.”

This Article is comprised of three parts. Part I provides the historical backdrop for legal education, briefly critiques the current system, and discusses the impact of those shortcomings on law students. Part II considers a few of the solutions crafted in response to the current crisis facing legal educators. Part III suggests a wide array of reforms aimed at remediating these deficiencies and argues that any real reform must consider and integrate the seemingly disparate but interdependent factors.

Paul Johnson, Heteronormativity and the European Court of Human Rights

Paul Johnson, Heteronormativity and the European Court of Human Rights, LAW AND CRITIQUE, Volume 23, Number 1, 43-66

Abstract

This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe.

Michael Faure (ed.), Jan Smits (ed.), Does Law Matter? On Law and Economic Growth, Intersentia, 2011

Michael Faure (ed.), Jan Smits (ed.), Does Law Matter? On Law and Economic Growth, Intersentia, 2011

Table of contents

One of the most discussed questions in social science of the last decade is to what extent differences in economic development among countries can be explained by differing law and institutions. According to the ‘legal origins’-thesis, the answer is clear: it claims that differences in economic performance are to a large extent dependent on whether a country belongs to the civil law or common law family. Others have severely criticised this thesis. This volume takes stock of the debate and offers an integrated approach that not only takes into account the insights of economics, but also of comparative law and empirics.

 This book is published to celebrate the 100th volume in the Ius Commune Europaeum series. Its publication also marks the 20th anniversary of the Maastricht European Institute for Transnational Legal Research (METRO) and the founding of the Maastricht European Private Law Institute (MEPLI).

Allan Rosas, Lorna Armati, EU Constitutional Law. An Introduction. Second Edition (Hart Publishing, 2012)

Allan Rosas, Lorna Armati, EU Constitutional Law. An Introduction. Second Edition, Hart Publishing, 2012

The second revised edition of this acclaimed book brings the story of the EU’s constitutional journey up-to-date. The EU’s constitution, composed of a myriad of legal texts, case law and practice, is a moving target subject to continuous change, and the past two years have seen no slacking in the pace of change. With a wider geographical ambit than ever, the EU faces unprecedented political, economic, and cultural challenges, all of which impact upon the evolution of its constitution. Moreover the crisis in the Eurozone and the sovereign debt crisis have given rise to the need for a wholly new chapter focussing on how these crises have necessitated further institutional reforms.

The book succeeds, where others have struggled, to make sense of the EU’s complex constitutional order, focusing on its essential features but taking into account the profound changes which have taken place over the past 20 years. The EU has become much more than an internal economic market and has recently become active in areas such as immigration and third-country nationals, security and defence policy and penal law and procedure, while the euro and sovereign debt crises have triggered an increasing focus on economic and fiscal policy.

Eschewing too much detail the authors underline the essential values, principles and objectives of the integration regime as well as its basic normative structure and hierarchy. In this context, the decentralised nature of the EU is highlighted as an integral part of its constitutional make-up. Recurring themes include European citizenship, fundamental rights and the rule of law. The book also confronts head-on the problems and challenges facing the Union and the gap which is often perceived between lofty ideals and harsh realities.

The book will be useful to students of EU law and European integration but will also appeal to a broader audience of researchers and practitioners, including political scientists.

Allan Rosas has been a judge at the European Court of Justice since January 2002, having formerly been Principal Legal Adviser and later Deputy Director-General of the Legal Service of the European Commission.

Lorna Armati has been a Member of the Legal Service of the European Commission since September 2010, having formerly been Legal Secretary to Judge Rosas and later Legal Officer at the EFTA Surveillance Authority.

Recenzia primei editii, semnata de Mihai Banu, a fost publicata in Revista Romana de Drept European (RRDE), nr. 3/2011.

Ronald A. Brand, The Rome I Regulation Rules on Party Autonomy for Choice of Law: A U.S. Perspective

Ronald A. Brand, The Rome I Regulation Rules on Party Autonomy for Choice of Law: A U.S. Perspective, U. of Pittsburgh Legal Studies Research Paper Series No. 2011-29. Available at SSRN

 Abstract:

This chapter was presented at a conference in Dublin on the (then) new Rome I Regulation of the European Union in the fall of 2009. It contrasts the Rome I rules on party autonomy with those in the United States. In particular, it considers the rules in the Rome I Regulation that ostensibly protect consumers by discouraging party agreement on a pre-dispute basis to the law governing a consumer contract. These rules are compared with the absence of private international law restrictions on choice of forum and choice of law in the United States, even in consumer contracts. The result in Europe is the “protection” of the right of the consumer to his or her home law, but often with the resulting reduction of consumer choice and increase of consumer cost. In the United States, cases have instead provided more of an economic analysis, often tying a consumer to the merchant’s choice of law (and choice of forum), but resulting in increased access to goods and services at what is generally a lower cost. Both systems “protect” consumers, they just choose to protect different consumer interests.

Anthony Arnull, Judicial Activism and the Court of Justice: How Should Academics Respond?

Anthony Michael Arnull, Judicial Activism and the Court of Justice: How Should Academics Respond? Maastricht Faculty of Law Working Paper No. 2012-3. Available at SSRN

 Abstract:

Do academics have a role to play in responding to judicial activism by the European Court of Justice? If so, what should that role be? Should they seek to defend the Court against accusations of judicial activism? Should they align themselves with the Court’s critics in an attempt to persuade the Court to change its ways? Or should they adopt a more reserved posture, criticizing the Court on technical grounds where a decision appears to be legally unsound but at the same time recognizing the special features of the EU legal order and the role attributed to the Court under the Treaties? In an attempt to answer these questions, this paper begins by considering the perception academics have of themselves and what we mean by judicial activism. It then examines whether, and if so to what extent, the Court may be considered activist. It concludes with some tentative suggestions about the role academics might play in responding to the Court’s case law.

Barbara Jeanne Attinger, Crisis Management and Bank Resolution: Quo Vadis, Europe?

Barbara Jeanne Attinger, Crisis Management and Bank Resolution: Quo Vadis, Europe?, ECB Legal Working Paper No. 13. Available at SSRN

 

Abstract:

Crisis management in the financial sector is currently at the top of the reform agenda at national, European and international level. Well-designed bank resolution regimes are essential not only to meet the acute need of a credit institution in crisis but also to ensure that proper incentive structures operate in the market prior to any crisis. Existing regimes are inadequate and incentive structures have proven to be fundamentally destructive. The lack of workable crisis resolution tools has had an adverse effect on crisis prevention and imposed enormous costs on the taxpayer. This paper summarizes the main legal challenges for crisis management of ailing credit institutions and identifies the key features of an effective bank resolution regime. Effective crisis management demands the ability to manage. In the aftermath of the financial crisis, two leading EU Member States (the United Kingdom and Germany) adopted special resolution regimes, providing for tools and powers to manage the resolution of banks. The paper assesses and compares these two approaches. In addition, the paper analyses the emerging response at European and international level, focusing in particular on bail-ins, the suspension of netting and other rights, treatment of groups and systemically important financial institutions. At the international level, the Financial Stability Board’s recently published ‘Key Attributes of Effective Resolution Regimes for Financial Institutions’ constitute a breakthrough in the development of a global resolution regime. At the EU level, the European Commission’s proposal for an EU crisis management regime is expected to be an even more ambitious step. The European financial sector reforms have the potential to achieve a quantum leap in the efficient cross-border management of key issues, in particular in the field of bank resolution and insolvency law. This may evolve into a whole new dimension of efficient cooperation and economic and political convergence. In the field of crisis management, the fact cannot be ignored that we need more Europe, not less.

 

Ingolf Pernice, INTERNATIONAL AGREEMENT ON A REINFORCED ECONOMIC UNION

Ingolf Pernice, INTERNATIONAL AGREEMENT ON A REINFORCED ECONOMIC UNION, Walter Hallstein Institut für Europäisches Verfassungsrecht der Humboldt-Universität zu Berlin, 09.01.2012

 

Detalii

Seminar ‘Private law and nationalism’, 03.02.2012

3 February 2012: Seminar ‘Private law and nationalism’

(National Resistance against the Europeanisation of Private Law)

Date: 3 February 2012

Location: University of Amsterdam, Room A009

 The seminar is part of the research project ‘National Resistance against the Europeanisation of Private Law’ that is sponsored by HiiL (Hague Institute for the Internationalization of Law).

 Private law and nationalism

This seminar explores the relationship between private law and nationalism. At first sight, the days of private law nationalism may seem to be over in the light of Europeanization, globalisation and, more generally, our post-national condition. On the other hand, the Europeanization of private law has met with fierce resistance. And, if nationalism is the political principle according to which the political and the national unit should be congruent (Gellner) should then not the resistance against the Europeanization of private law, often in the guise of technical arguments, not regarded as a form of (crypto-)nationalism if such arguments consistently regard the nation state as the most natural locus for private law making? And, on the other hand, if nations are imagined communities (Anderson), construed by men and women over time, should not then the work on a Common European Sales Law and a European Law Institute count as important instances of European national building? Nationalism seems bad, indeed dangerous, in light of the catastrophic role it played in the 20th Century. However, more recently it has been argued that nationalism and liberalism are not irreconcilable (Tamir) and that the solidarity that is needed for a functioning welfare state requires a common sense of belonging that is found in the nation (Miller).

 Can a similar normative argument be made in favour of liberal private law nationalism? These and similar questions will be at the heart of discussions in this international seminar organised by the Centre for the Study of European Contract Law in Amsterdam.

Download programme

This is a multidisciplinary project, selected on the basis of ‘double blind’ peer review. Led by two of the most renowned Dutch scholars in the field. The project will generate policy recommendations for European and national policy-makers in regard of:
(a) factors affecting European harmonisation of contract and consumer law and
(b) the effects of harmonisation on the costs of cross-border trade and the incidence of trading.

Project leaders 

• Prof. Jan Smits
  Maastricht University
• Prof. Martijn Hesselink
  University of Amsterdam

Researchers 

• Gary Low – Maastricht University
• Guido Comparato – University of Amsterdam

Total budget: €290,000
HiiL financial support: €260,000
Matching: €30,000
Duration: 2008 – 2011

Scientific publications

• Smits, J. (2012) “Introduction to special issue: Harmonisation of contract law: an economic and behavioural perspective” EJLE (forthcoming)
• Gomez, F & Ganuza, JJ  (2012)  ”How to build European private law: an economic analysis of the lawmaking and harmonization dimensions in European private law” EJLE (forthcoming)
• O’Hara O’Connor E. (2012) ”The limits of contract law harmonization” EJLE (forthcoming)
• Low, G. “Will firms consider a European optional instrument in contract law?” EJLE (forthcoming)
• Wagner, H.  (2012) ”Is harmonization of legal rules an appropriate target? Lessons from the global financial crisis” EJLE (forthcoming)
• Low, G. (2010) “The (Ir)Relevance of Harmonization and Legal Diversity to European Contract Law: A Perspective from Psychology“. European Review of Private Law, Vol. 2, 2010, pp. 285 – 305
• Low, G. (2010) “ ‘Bounded’ Regulatory Competition In The Market For European Contract Laws”, paper presented on the Roundtable Conference on Harmonisation and Diversity in European Contract Law – Perspectives from Economics and Psychology, 5 March 2010, Tilburg
• Smits, J.M. (2009) “Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer Rights”. TICOM Working Paper on Comparative and Transnational Law 2009/2
• Low, G. (2009) “How and Why We Are (Not) Bothered By the Costs of Legal Diversity – A Behavioural Approach to the Harmonization of European Contract Law“.  Tilburg Institute of Comparative and Transnational Law Working Paper No. 2009/8