Friends of the Supreme Court: Interest Groups and Judicial Decision Making

Paul M Collins, Friends of the Supreme Court: Interest Groups and Judicial Decision Making, Oxford University Press, 2008. [*]

The U.S. Supreme Court is a public policy battleground in which organized interests attempt to etch their economic, legal, and political preferences into law through the filing of amicus curiae (”friend of the court”) briefs. In Friends of the Supreme Court: Interest Groups and Judicial Decision Making, Paul M. Collins, Jr. explores how organized interests influence the justices’ decision making, including how the justices vote and whether they choose to author concurrences and dissents. Collins presents theories of judicial choice derived from disciplines as diverse as law, marketing, political science, and social psychology. This theoretically rich and empirically rigorous treatment of decision-making on the nation’s highest court, which represents the most comprehensive examination ever undertaken of the influence of U.S. Supreme Court amicus briefs, provides clear evidence that interest groups play a significant role in shaping the justices’ choices.

 

Fragmente aici.

Articol. Permisul de sedere in cadrul normativ & jurisprudential actual

Articol in limba italiana, despre acelasi stat.
Lara Trucco - Il permesso di soggiorno nel quadro normativo e giurisprudenza attuale

De aici.

Review of Law & Economics

Damages for Breach of Contract, Impossibility of Performance and Legal Enforceability

German Coloma

Social Norms, Self-Interest and Ambiguity of Legal Norms: An Experimental Analysis of the Rule vs. Standard Dilemma

Yuval Feldman and Alon Harel

Frischmann’s View of “Toward a Theory of Property Rights”

Harold Demsetz

Causation and Incentives to Choose Levels of Care and Activity Under the Negligence Rule

Avraham D. Tabbach

A Positive Theory of Strict Liability

Keith N. Hylton

Aparitie recenta: The Economists’ Voice

The Emperor’s Dangerous Clothes

Laurence J. Kotlikoff

 Microsoft: Predator or Prey?

Robert Hahn and Peter Passell

Rethinking the Roles of Banks: A Call for Narrow Banking

Oz Shy and Rune Stenbacka

Letters

Letter: Climate Change Debate Needs Two Sides

Jeffrey H. Fischer

 Letter: Zombies May Mean Attention Bonds Will Not Cure Spam

Jamus Jerome Lim

Lectia lui Jefferson pentru europeni

Jefferson: a lesson for Europeans

din The Times

de William Rees-Mogg

The US Constitution is 221 years old… hard to see the Lisbon treaty being so successful

On June 19 Sotheby’s will be holding an auction of “fine books and manuscripts” in New York. Included in the sale, at lot 18, is a fascinating letter from Thomas Jefferson to Dr William Bache. It is dated Philadelphia, January 2, 1800. At that time, Jefferson was Vice-President. Sotheby’s estimate is that it will sell for $100,000 to $150,000. This is an historic document of the highest importance.

Jefferson himself is one of those rare historic characters whose influence still remains alive long after their death. Americans, both of liberal and conservative views, tend to regard him as the most original thinker among all the presidents, with the possible exception of Abraham Lincoln. It was Jefferson who drafted the Declaration of Independence in 1776; through his work on the Constitution of Virginia, he had considerable influence on the drafting of the US Constitution itself, though in 1787, when it was signed, Jefferson was still in Paris, as the US Ambassador to France.

The main criticism that is now made of Jefferson’s career is that he, like Charles James Fox in England, became overcommitted to the extreme development of the French Revolutionary process; Jefferson became more Jacobin than the Jacobins, even expressing approval of the execution of Louis XVI, whom he had previously regarded as a “good” king. So long as there was any hope of the French Revolution following the same course as America’s, Jefferson remained on the side of revolution.

The date of this letter is significant. Early February 1800 was the time when the news reached America of Napoleon’s coup d’état, best known as the Coup of 18 Brumaire from the French Revolutionary calendar. In Anglo-Saxon terms, it occurred on November 9, 1799.

Jefferson’s response to the news of Napoleon’s seizure of power was virtually a cry of pain. The event forced him to reconsider his whole position. He wrote to Dr Bache: “You have seen the afflicting details from Paris. On what grounds the revolution has been made, we are not informed, and are still more at a loss to divine what will be its issue; whether we are to have over again the history of Robespierre, of Caesar, or of the new phenomenon of an usurpation of the government for the purpose of making it free.

“Our citizens, however, should derive from this some useful lessons. They should see the necessity to rally firmly and in close bands round their Constitution; never to suffer an iota of it to be infringed; to incubate on minorities the duties of acquiescence in the will of the majority, and in the majority a respect to the will of the minority; to beware of a military force even of citizens; and to be wary of too much confidence in any man.

“The confidence of the French people in Bonaparte has enabled him to kick down their Constitution, and instead of that to leave them dependent on his will and his life. I have never seen so awful a moment as the present.”

Many European politicians have seen the EU as a future United States of Europe, although many of them are reluctant to admit it. The extraordinary thing is that they have not studied the history of the American Constitution. This is like the problem of bishops and Adam Smith. One hardly ever meets a bishop with a student’s knowledge of classical economics. They have seldom read Smith’s Wealth of Nations; they just assume it must be wrong.

In the same way, there are few Europhiles with a good knowledge of late 18th-century American history. Hardly any of the “experts” on the European constitution seem to have read The Federalist, which was written by Alexander Hamilton, James Madison and John Jay, and first published in 1788.

In 1825 Thomas Jefferson himself proposed that The Federalist should be adopted as a required text in the University of Virginia. He described it as: “An authority to which appeal is habitually made by all… as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the United States, on questions as to its genuine meaning.” Perhaps The Federalist should be a required text in Brussels and for the European Court of Justice.

I do not argue that the problems of early 21st-century Europe are identical to those of late 18th-century America. I am not myself a federalist. Yet the Americans did have to face similar problems in trying to reconcile the relationship of the federal government with the individual states - the very questions that confront Europe in the Lisbon treaty.

The American Constitution has succeeded in providing the US with a stable democratic framework that has survived the great changes of the past two centuries, including - in the 20th century - two world wars, a Cold War and a slump. The US Constitution is 221 years old, and still able to produce a presidential election with three highly gifted candidates. The Constitution has repeatedly proved able to regenerate itself.

The original French Constitution was adopted only shortly after the American; within a decade it had been overtaken by the Terror and overthrown by Napoleon. Surely, Europe should be asking this question: why did the US Constitution succeed when the French Constitution has repeatedly failed? There is also the primary question of assent. The articles of the US Constitution were adopted by the Federal Convention in September 1787; the opening words are: “We, the people of the United States…”

Combined with the earlier treaties, Lisbon does form a sort of constitution, though an unsatisfactory one. Yet no one would be entitled to start this European constitution with the words: “We, the people of Europe…” It might have to be: “We, the people of Ireland…”, since the Irish are the only people allowed a vote. Will the Lisbon constitution last as long as the American? The answer is probably not.

CJCE & jurisprudenta in materia actiunii nominative de control (”golden share”)

 Larry Catá Backer - “The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law” . Tulane Law Review, Vol. 82, 2008 (*)

This Article examines the development of a European framework for considering the law applicable to state private interventions in the market, both their own and those of other states through direct investment or through sovereign wealth funds. For this purpose, it closely analyzes the so-called golden share decisions of the European Court of Justice delivered between 2002 and 2007, through which the ECJ sought to apply the free movement of capital provisions of the European Treaties to vestigial issues of the construction of a post-socialist political economy in Europe. The Article then applies those insights in three distinct cases of sovereign participation in private market activity: the purchase of shares of a domestic company by a state; the purchase of shares of a foreign corporation by a state; and the purchase of shares by a multi-state sovereign wealth fund. It suggests the importance of the state aids jurisprudence of European Competition Law, a different result under American law, and the tensions inherent in the rising European jurisprudence with the parallel development of principles of foreign sovereign immunity.The central point of the Article is this: Traditional choice of law analysis is grounded in a stubborn belief in the separability of public and private law, and positing issues of conflicts (and choice) of law as a central problem of private law for transactions among several jurisdictions. This grounding misses an important new development in conflicts (and choice) of law as well as the substantive consequences of those choices. That development, in turn, is founded on the growth of a new phenomenon, the increasing tendency of states to behave like private actors (participating in markets) rather than as sovereigns (regulating markets).

The general framework of the analysis has been choice of law related, but not in the traditional sense. Traditionally, the activities of sovereigns, either as regulators or participants did not raise issues of either choice or conflict of laws. But all that is changing. Modern globalization has effectively introduced a global advance toward free movement of capital and to greater protection of private activity from regulation. At the same time, states have sought to act more energetically as private as well as public actors. In a global legal order in which the value of state sovereignty has diminished and the cross border element of transactions has increased, states can extend their authority as private actors to an extent difficult when they seek to regulate as sovereigns. States privatize their traditional activities or seek to regulate indirectly by acting in markets.

It is in this emerging jurisprudential milieu that issues of choice of law arise - when states seek to participate in markets, does private or public law apply?; and whose law applies in any case? The essay offers no answers to these questions. It suggests that the European Court of Justice’s golden share cases provides an excellent window on a difficult issue of choice of law, and a revolutionary one. The transnationalization of corporate law norms provides an opportunity not only to examine the changing landscape of choice of law in private law, but also the creation of a new set of vertical choice of law questions, and the substantive consequences of their adoption.

 

Ce datoreaza CE/UE gandirii juridice din SUA. Articol

Giuseppe Martinico - “Comparative Legal Studies and European Integration: Looking at the Origins of the Debate” (*); redam aici incheierea:

In conclusion, it can be said without any doubt that the intuitions of the American scholars have had a very important impact on the legal reasoning of the European Court of Justice and on the academic debate in the following years respectively. On the contrary, the impact on the language and activity of the European Federalist Movement is less evident.

Concerning the first kind of influence on the legal reasoning of the European Court of Justice, one could say that the features of the initial case-law, more oriented to the French style (short judgements), do not permit to “find” the explicit confirmation of such an influence. In any case, as Weiler and Cappelletti proved later, the technique of integration used by the Court and the “premises” of cases like Van Gend en Loos or Costa/Enel clearly bring to mind the instruments of American federalism integration: doctrine of implied powers, supremacy, incorporation, expansion of federal jurisdiction. The influence on the language of the European Federalist Movement was not fundamental: in their writings, in fact, Albertini and Levi, instead, adopted a notion of federalism and a language which is quite different from that of the American comparative lawyers. On the contrary, later scholars (both from Europe and US) undoubtedly “applied” their lesson by translating the categories and the techniques of federalism in contexts not centred on the national state (international and supranational organizations).

 

Development and human rights under WTO law

Gillian Moon, The WTO-Minus Strategy: Development and human rights under WTO law, (March 2008). University of New South Wales Faculty of Law Research Series. University of New South Wales Faculty of Law Research Series 2008. Working Paper 10. [*]

International trade law, human rights law and development studies share the common objective of promoting higher standards of living in the poorer countries of the world. Human rights and development scholars have been critical of the law of the World Trade Organisation (WTO), as implementing a development strategy which dominates and constrains the development strategy options of developing countries but which perceives development only in a narrow, economic sense. In this paper, the different theoretical underpinnings of international trade law and international human rights law are described and compared and their differing conceptions of development are examined from the perspective of the broader development discourse. The package of rights and obligations of developing countries under WTO law (the ‘WTO-Minus strategy’) is also described and examples of significant constraints placed by this package on the development strategy options open to developing countries regarding trade in goods are examined from the perspectives of the broader development discourse and international human rights norms. The capacity of the WTO to incorporate new and multidisciplinary knowledge about development is considered.

European Journal of International Law, 2008

European Journal of International Law, 1/2008

Ofer Eldar, Vote-trading in International Institutions, European Journal of International Law, Volume 19, Number 1, February 2008 [*]

There is evidence that countries trade votes among each other in international institutions on a wide range of issues, including the use of force, trade issues, and elections of judges. Vote-trading has been criticized as being a form of corruption, undue influence, and coercion. Contrary to common wisdom, however, I argue in this article that the case for introducing policy measures against vote-trading cannot be made out on the basis of available evidence. This article sets out an analytical framework for analysing vote-trading in international institutions, focusing on three major contexts in which vote-trading may generate benefits and costs: (1) agency costs (collective good), (2) coercive tendering, and (3) agency costs (constituents). The applicability of each context depends primarily on the type of decision in question - i.e. preference-decision or judgement-decision - and the interests that countries are expected to maximize when voting. The analytical framework is applied to evidence of vote-trading in four institutions, the Security Council, the General Assembly, the World Trade Organization, and the International Whaling Commission. The application of the analysis reveals that while vote-trading can create significant costs, there is only equivocal evidence to this effect, and in several cases vote-trading generates important benefits.

Laurence R. Helfer, Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime, European Journal of International Law, Volume 19, Number 1, February 2008 [*]

The European Court of Human Rights (ECtHR) is the crown jewel of the world’s most advanced international system for protecting civil and political liberties. In recent years, however, the ECtHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECtHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court’s future identity. In particular, the article argues for recognition of ‘embeddedness’ in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECtHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECtHR’s deference to national decision-makers is appropriate.

European Journal of International Law, 2/2008

Armin von Bogdandy, The European Union as Situation, Executive, and Promoter of the International Law of Cultural Diversity - Elements of a Beautiful Friendship, European Journal of International Law, April 2008; Vol. 19, No. 2 [*]

Cultural diversity is an important political and legal topos in the European Union. At the same time, the concern for cultural diversity gives reason for grave reservations towards the Union. This article intends to assist, on the basis of international law, in distinguishing appearance and reality. The Union will be analysed first as a situation of the application of the international law of cultural diversity, secondly as the regional executive of this international law, and thirdly as its global promoter. It shows that international law and Union law reinforce each other. The former conveys to the Union instruments to pursue European unification which at the same time serve its own implementation. Furthermore, it does not set limits to European unity since it protects only cultural pluralism but not state-supporting distinctiveness. A prerequisite for this consonance is that the Union’s constitutional law allows for political unity without cultural unity and that international law remains mute about important questions on European unification. The international law perspective thus does not fully exhaust the problem: conformity with international law alone cannot dissipate concern for the future of cultural diversity in the Union.

Ole Kristian Fauchald, The Legal Reasoning of ICSID Tribunals - An Empirical Analysis, European Journal of International Law, April 2008; Vol. 19, No. 2 [*]

This empirical analysis of the use of interpretive arguments by ad hoc tribunals of the International Centre for the Settlement of Investment Disputes covers almost 100 cases decided during the past 10 years. The cases are analysed with a view to determining which arguments the tribunals use and how the arguments are used in light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The analysis provides a basis for addressing the extent to which ICSID tribunals contribute to creating a predictable legal framework in which the interests of investors, states, and third parties are taken properly into account; the extent to which ICSID tribunals contribute to a coherent development of international investment law; and whether ICSID tribunals contribute to a ‘fragmentation’ of international law. Despite ICSID tribunals being ad hoc tribunals that solve legal disputes on the basis of heterogeneous legal sources, the article indicates that there is a tendency among ICSID tribunals to contribute to a homogeneous development of the methodology of international law. Nevertheless, the article concludes that ICSID tribunals could do significantly more to align their approaches to interpretive arguments with those of other international tribunals.

 

Articol din perspectiva sistemului constitutional italian despre guvernarea pe mai multe niveluri

… care s-ar numi “multilevel governance” in (fosta) limba in care a scris Shakespeare…

Articolul, in limba italiana, aici.

Cateva articole noi. Tel Aviv University Law Faculty Papers

Eyal Benvenisti “The Conception of International Law as a Legal System”
Subject area: Comparative Law, International Law
http://law.bepress.com/taulwps/fp/art83

David B. Schorr “How Blackstone Became a Blackstonian”
Subject area: Constitutional Law, Environmental Law, Intellectual Property Law, Land Use Planning, Legal History, Property-Personal and Real, Public Law and Legal Theory
http://law.bepress.com/taulwps/fp/art73

Hanoch Dagan “RESTITUTION’S REALISM”
Subject area: Contracts, Jurisprudence, Property-Personal and Real, Remedies, Torts
http://law.bepress.com/taulwps/fp/art67

Jose Brunner “Modern Times: Law, Temporality and Happiness in Hobbes, Locke and Bentham”
Subject area: Law and Society, Legal History, Politics
http://law.bepress.com/taulwps/fp/art52

Law and Financial Markets Review, May 2008

Law and Financial Markets Review, May 2008 [*] [*]

Academic Analysis
• Regulation Lite: The Rise of Emissions Trading
Robert Baldwin

• On being contrarian
Roger McCormick

Law Firm Updates
• Law Reports
Supplied by Allen & Overy LLP
• EU Regulatory Developments
Supplied by Clifford Chance LLP
Abstract:
European Parliament; EU Commission; Committee of European Securities Regulators (CESR); Committee of European Banking Supervisors (CEBS); European Central Bank (ECB); European Banking Federation (EBF-FBE)

• Environmental Finance News
Supplied by Dewey & LeBoeuf LLP
• Financial Regulatory Developments
Supplied by Herbert Smith LLP
• Corporate Finance and General
Supplied by Lovells LLP
Practitioner Perspectives
• The Credit Crunch: The Regulatory Way Forward
Etay Katz

Joanna Perkins, A Question of Priorities: Choice of Law and Proprietory Aspects of the Assignment
Abstract:
Among the fields of academic legal research, the topic of choice-of-law rules for the assignment of debts in financial services and markets must be one of the most complicated, challenging and arcane. But what is merely challenging in the academic arena becomes positively daunting when tested in the crucible of legislative reform, where there is little or no room for error. And if said legislative reform is to be accomplished within a tight timeframe in a highly political forum and to be drafted by civil servants rather than conflicts specialists or financial experts, the endeavour must be regarded not so much as difficult but virtually hopeless. Certainly that was the recent experience of the European Council’s standing Working Group on Civil Law during the negotiations on the transposition of the Rome Convention on the Law Applicable to Contractual Obligations 1980 into the European legal acquis as the putative Rome I Regulation.

• The Legal Environment for Asset-backed Securitisation in Russia
Ajay Sud
• Czech Insolvency Reform - Good News for the Financiers?
Mikulas Touska, Silvie Horackova, Eva Vrana, Nick Herrod

Mattias Levin, Code of Conduct on Clearing and Settlement: First Experiences and Future Outlook
 
Abstract
On 7 November 2006, a Code of Conduct on clearing and settlement was presented to Charles McCreevy, the Commissioner for Internal Market and Services. The Code was the culmination of nearly five years of hard work by the European Commission, assessing the European post-trading sector, documenting its achievements and shortcomings, and analysing the options available to improve its efficiency, thereby making it more adapted to a European internal market. A little over a year has now passed since the Code was presented and it is accordingly an appropriate time to take stock of its effectiveness in achieving these objectives. This article takes stock of progress to date, assesses the main outstanding issues and looks at what lies ahead.

• The Turkish Financial Leasing Law - is it Industry Specific?
Yesim Bezen
Special Feature
• Interview with Emmanuel Maurice
• The Development of the Global Markets as Rule-makers: Engagement and Legitimacy
Julia Black, David Rouch

European Review of Private Law, Volume 16, Number 2, 2008

European Review of Private Law, Volume 16, Number 2, 2008

SABRINA PRADUROUX, The European Convention on Human Rights and Environmental Nuisances, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 269-281.

Abstract: In as much as environmental nuisances caused by industrial activities can have adverse effects on both the economic and the amenity value of an area, from the European Convention on Human Rights perspective they can be seen to interfere with either the right of property or the right to respect for private and family life. The current case law of the Strasbourg Court shows the Court’s preference for applying Article 8, which protects the right to respect for private and family life, and which affords, especially from the procedural point of view, a less far-reaching protection than Article 1 of Protocol No. 1, concerning the right of property.

Liesbeth Enneking, The Common Denominator of the Trafigura Case, Foreign Direct Liability Cases and the Rome II Regulation, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 283-312.
Abstract: As part of a current trend towards so-called ‘foreign direct liability cases’, attempts are being made to hold parent companies of multinational corporations liable in their home countries for damage caused in host countries. This trend, of which the Trafigura case serves as a recent example here, suggests that tort law may have a regulatory part to play when it comes to the transboundary activities of multinational corporations. However, the extent to which tort law can act as a regulatory mechanism is dependent on its applicability, which, in turn, is determined by private international law.
The recently adopted Rome II Regulation, which lays down conflict-of-law rules for non-contractual obligations, will only have a limited conducive effect on the feasibility of the regulation through tort law of the transboundary activities of multinational corporations. On the basis of this Regulation, it is only in cases where the resulting damage consists of environmental damage that home country tort law may be applicable. In all other cases, attempts to hold the parent company of the multinational corporation liable for damage caused in the host country will have to be based on the tort law of the host country.
This effectively diminishes the feasibility of home country tort law as a mechanism for the regulation of the transboundary activities of multinational corporations.

Petra Joanna Pipková, Gutgläubiger Eigentumserwerb als gesetzliches Limit des verfassungsrechtlich gewährleisteten Rechts auf Eigentum, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 313-321
Summary:
Abstract: This contribution deals with the always current topic of good faith acquisition of property. The common Czech private law still applies the old roman principle Nemo plus iuris ad alium transfere potest quam ipse habet. It was introduced into the Czech civil act in 1964 for reasons of protection of the right to property protected and guaranteed by the constitutional law. Later on, the needs of the market were acknowledged and good faith acquisition was introduced in the domain of sale of goods in B2B relations. The common courts had a problem with the recognition of this rule (especially, because some of the cases concerned the acquisition of stolen cars). For that reason, the Constitutional court was several times submitted to decide about the accordance of the good faith acquisition with the fundamental right to property. The Court created a construction of conditions and requirements on the good faith of the acquirer and the proof of it. The Court measures the accordance on a general rule of limitation by law of the fundamental rights which requires the preservation of the substance and purpose of the right and forbids the abuse of the limitating law. The decisions touch the purpose of the limitation - good faith acquisition and interests of the market - but never examine the proportionality of the purpose to the limitation of the fundamental right to property.

Dmitry A. Pentsov, La loi de la Fédération de Russie relative aux biens culturels deplaces en URSS dans le cadre de la Seconde guerre mondiale, European Review of Private Law, vol. 16, nr. 2, 2008,  pp. 323-332
Summary:
Abstracts: The issue of the future of thousands of cultural property objects moved to the USSR as a result of the Second World War as a compensation for the destruction of the soviet cultural patrimony during the war and their eventual restitution has become to be openly discussed between the USSR (now, the Russian Federation) and the Federal Republic of Germany in the beginning of the 90s within the framework of the policy of glasnost (the ‘openness’). The fate of the recent Russian federal law ‘On the cultural property moved to the USSR as a result of the Second World War and located in the territory of the Russian Federation’ clearly illustrates the magnitude and the contradictions of this debate on the international level, as well as within Russian governmental circles and the Russian society at large. The purpose of this article is to provide a general overview of this recent Russian law on the displaced cultural property. First, the article presents the basic concepts of the law. Second, it examines the issue of ownership to these cultural property objects and their eventual restitution, notably the restitution at the request of private individuals and the restitution of family relics.

Konstantinos Kerameus, Comments on Form and Function of Legal Precedents, European Review of Private Law, vol. 16, nr. 2, 2008,  pp. 333-337

Stefan Geiger, Constantin Kruse, House of Lords 3 May 2006, Barker v. Corus Neue Impulse für das Europäische Deliktsrecht vom House of Lords, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 339-351
Summary:
Abstract: With Barker v. Corus, the House of Lords has given fresh impetus to European Tort Law. After having affirmed liability in cases of alternative liability in Fairchild v. Glenhaven Funeral Services and Others, it has now engaged with the concept of liability due to mere probability. Thus, the importance of the dogma of causation and of the dogma of the injured person’s established right for compensation has decreased considerably. The consequences for the law of liability and for the insurance industry are unforeseeable.

Michael Milo, ECHR 30 August 2007, Pye v. United Kingdom: A Technical Retreat from Private (Property) Law, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 353-361
Summary:
Abstract: The Grand Chamber of the European Court of Human Rights has judged on 30 August 2007, in a ten to seven majority opinion, that the arrangements regarding adverse possession under the law of England and Wales is in conformity with Article 1 First Protocol to the European Convention on Human Rights (Art. 1 FP). This decision reversed the chamber decision on Pye v. UK of 15 November 2005. The Grand Chamber decision is an important decision, for two reasons. The decision makes clear that national arrangements of private (property) law are fundamentally subject to a constitutional review by the ECHR. But the decision also makes clear that the Court - at least for the moment, and according to the majority opinion - will be reticent in exercising this power. While the result is positive for private property law, the court’s reasoning may be subject to critique.

Han Van Manen, Prof. Dr. Marcus Lutter e.a. Legal Capital in Europe - European Company and Financial Law Review Special Volume 1, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 363-364.

Mike Wienbracke, Wolff, Josef, Trust, Fiducia und fiduziarische Treuhand (zugl.Diss. Universität Salzburg), Peter Lang Verlag, Frankfurt am Main 2005, S. 387, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 365-369

W.C.H Ervine, Willem H. Van Boom and Marco Loos (eds), Collective Enforcement of Consumer Law: Securing Compliance in Europe through Private Group Action and Public Authority Intervention, Europa Law Publishing, Groningen 2007 EUR 49, USD 80, European Review of Private Law, vol. 16, nr. 2, 2008,  pp. 371-373.

Anna Verena Lauber, Conference ‘CFR and Existing EC Contract Law’, Münster,10-11 December 2007, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 375-380.

Joan M. Rius Riu, IV International Congress ‘European Private Law Beyond the CFR’,Lleida, 25-26 October 2007, European Review of Private Law, vol. 16, nr. 2, 2008, pp. 381-382.

The Interrelationship of European Jurisdiction and Choice of Law in Contract

Zheng Tang, The Interrelationship of European Jurisdiction and Choice of Law in Contract, Journal of Private International Law, Vol 4 Issue , April 2008.
Abstract
Compared with scholarship in other conflicts topics, less attention has been paid to the interrelationship of jurisdiction and choice of law. It is generally agreed that as a matter of principle jurisdiction and choice of law are distinct issues and need different processes. The conceptual dichotomy is the foundation of the contemporary conflicts system, including the European harmonisation of private international law. The European jurisdiction rules in civil and commercial matters are contained in the Brussels regime, including Council Regulation 44/2001 and the Lugano Convention; the European choice of law in contracts is harmonised by the Rome Convention, which has been undergoing a process to be converted into a Council Regulation (”Rome I”). Although the legislators have held the willingness to create a systematic and congruent conflicts system, a close scrutiny of the texts of both regimes suggests insufficient consideration has actually been given to the implications of the development of one upon the other. This article aims to focus on the interrelationship of jurisdiction and choice of law in contracts by examining some key issues arising out of the current European context.

 

European Competition Law Review [*, *]
Volume 29, Issue 4, 2008

Massimo Motta, On Cartel Deterrence and Fines in the European Union, European Competition Law Review, Volume 29, Issue 4, 2008

This paper assesses-with the help of some simple quantitative analysis-the European Commission’s practice against cartels, with particular reference to fines. It then discusses policies which can be used to increase cartel deterrence.

Alex Petrasincu, The European Commission’s New Guidelines on the Assessment of Non-Horizontal Mergers-Great Expectations Disappointed, European Competition Law Review, Volume 29, Issue 4, 2008

The European Commission recently published its Guidelines on the assessment of non-horizontal mergers. This article examines the Guidelines’ approach to non-horizontal mergers by comparing it to the Commission’s enforcement practice. At first glance, the Guidelines seem to describe the analysis of vertical and conglomerate mergers in a rather comprehensive manner. An in-depth examination however reveals that the Guidelines raise many questions.

Tjarda Van Der Vijver, Exemptions to Third Party Access for New Infrastructures in the European Community Gas Sector-The Exception that Defies the Rule?, European Competition Law Review, Volume 29, Issue 4, 2008

In order to stimulate competition in the European gas sector, the Second Gas Directive puts forward the principle of third party access (TPA). Exemptions to TPA can be made if these are necessary to built new infrastructures. This article examines how the national authorities deal with such exemptions. It concludes that exemptions are more easily granted than the underlying texts suggest, but that there are understandable reasons for this.

Hanna Anttilainen-Mochnacz, Two-step Transaction Structures in the Context of the EC Merger Regulation: To Have or to Hold?, European Competition Law Review, Volume 29, Issue 4, 2008

Two-step transaction structures such as “pooling”, “warehousing” and options may solve commercial needs but face increasing hurdles in the context of the EC merger control rules. This article considers the various interpretation problems raised by such structures as well as considering some pertinent past case law.

John F. Blakney, Olivia Wright, The North American Price Discrimination Law Debate: Considerations for Europe, European Competition Law Review, Volume 29, Issue 4, 2008

This article looks to Canadian competition law to argue the merits of a tailored price discrimination prohibition of demonstrably anti-competitive conduct for European competition law, particularly in the buyer side or upstream markets where market power can arise at market shares well below those generally applied for general abuse of dominance and anti-monopolization prohibitions.
Moritz Lorenz, The New Chinese Competition Act, European Competition Law Review, Volume 29, Issue 4, 2008

On August 30, 2007, China passed its first complete competition law following over 10 years of debate. The new act comes into force on August 1, 2008. China will then have a law which contains the “classic three pillars of competition law”, specifically a prohibition on anti-competitive agreements and a prohibition on abuse of dominance and merger control. Until now these areas were only covered by very fragmented regulations. In addition, the new act contains a prohibition on the abuse of sovereign power to reduce or eliminate competition. With the new legislation the People’s Republic of China has achieved another step on the road to transforming itself from a planned to a free market economy, and the new law markedly changes the legal framework for the activities of foreign companies. The following article provides an overview of the changes and in so doing draws comparisons with the EC regime.

David Wirth, Niall Collins, Assessing the Cost-Benefit Impact within the De Minimis Exception, European Competition Law Review, Volume 29, Issue 4, 2008

This article provides an overview of the Office of Fair Trading’s “New Guidelines”, published in November 2007 and revising their de minimis guidance. It assesses how this guidance has been applied in recent public transport merger decisions, and calls attention to factors potentially relevant to mergers in other sectors.

Case Comment
Gerard Rothschild, The Battle of the Buses: Chester City Council v Arriva Plc, European Competition Law Review, Volume 29, Issue 4, 2008

This article analyses the English High Court’s decision in Chester City Council v Arriva Plc. The expedited claim under s.18 of the Competition Act 1998 alleged abuse of dominance by predatory action influencing the sale of a municipal bus company. The article considers market analysis, standard of proof and approach to expert evidence in such a claim.

Book Reviews

Stephen Tupper, Regulating Utilities and Promoting Competition-Lessons for the Future; Utility Regulation in Competitive Markets-Problems and Progress, European Competition Law Review, Volume 29, Issue 4, 2008

 

International Journal of Corporate Governance,1,1,2008

International Journal of Corporate Governance

Volume 1, Number 1, 2008 (*)
Jarrad Harford, Kai Li, Xinlei Zhao, Corporate boards and the leverage and debt maturity choices, International Journal of Corporate Governance, Volume 1, Number 1, 2008.

Jennifer Hill, Evolving ‘rules of the game’ in corporate governance reform, International Journal of Corporate Governance, Volume 1, Number 1, 2008.

Wissam Abdallah, Marc Goergen, The impact of a cross-listing on dividend policy, International Journal of Corporate Governance, Volume 1, Number 1, 2008.

Steen Thomsen, A minimum theory of boards, International Journal of Corporate Governance, Volume 1, Number 1, 2008.

Chris Mallin, Institutional shareholders: their role in the shaping of corporate governance, International Journal of Corporate Governance, Volume 1, Number 1, 2008.

Han Donker, Saif Zahir, Takeovers, corporate control, and return to target shareholders, International Journal of Corporate Governance, Volume 1, Number 1, 2008.

Utrecht Law Review. Nr. din martie dedicat societatilor comerciale in UE

Special on Companies Crossing Borders within Europe; aici - online.

Il fallimento della Costituzione europea. Note a margine del Trattato di Lisbona

Articol recent; aici (*).

SOMMARIO: 1. La rinuncia di Lisbona. Breve cronaca di un fallimento annunciato. - 2. Da Maastricht a Lisbona. Ovvero: dai Trattati alla Costituzione e dalla Costituzione ai Trattati. - 3. Le tesi habermasiane e la retorica “intellettuale” sull’Europa. - 4. L’art. 16 della Déclaration des droits quale matrice esclusiva del concetto di costituzione - 5. Le ambiguità di un progetto costituzionale senza pathos. - 6. I luoghi comuni dell’habermasismo all’italiana. - 7. L’evanescente identità dell’Unione europea. - 8. I rischi di una Europa “antisovrana”. - 9. Diritti versus democrazia? - 10. Il mito delle “costituzioni senza Stato” come reazione alle degenerazioni delle costituzioni statali. Un falso problema. - 11. Il mito delle “costituzioni senza Stato” come reazione alla “morte dello Stato”. Un problema falso. - 12. Per una fondazione democratica dell’Europa. - 13. L’Unione europea contro l’identità europea? - 14. Quale prospettiva costituzionale per l’Europa - 15. Una breve postilla

Claudio De Fiores

Horatia Muir-Watt. Dreptul international privat intr-o lume in schimbare

Reshaping Private International Law in a Changing World, editorial de pe blogul ConflictofLaws.net (*).

Adunarea Nationala (Franta). Raport cu privire la protectia secretului surselor ziaristilor

Rapport relatif à la protection du secret des sources des journalistes; aici (*).

Raport colectiv despre gestiunea riscurilor in timpul turbulentelor de pe piete

Observations on Risk Management Practices during the Recent Market Turbulence, martie a.c., aici (x)

Lege fundamentala si post-constitutionalism. Tratatul de la Lisabona

Articol nou, in italiana:

Una legge fondamentale post-costituzionale? Il diritto pubblico europeo alla luce del Trattato di Lisbona  (*)

Articol despre competentele CE/UE in privinta reglementarii creditului

Despre competentele CE in piata interna s-a mai scris, evident.

Secured Credit and the Internal Market: The Fundamental Freedoms and the EU’s Mandate for Legislation

Jacobien W. Rutgers

Free University of Amsterdam - Faculty of Law  

Abstract:     
This paper discusses the competence of the European Community to provide measures with respect to security interests which are vested in movables. First, it is elaborated whether Article 95 EC provides the power to harmonize national rules concerning security vested in movables. Secondly, the question is raised whether Article 308 EC provides a power to create a European Security Interest. Both questions are answered affirmatively. Subsequently, these two issues are placed within the context of the Common Frame of Reference process, which the European Commission has started in the area of contract law. In this respect it should be noticed that the European Commission focuses mainly on ‘pure’ contract law rather than on security interests vested in movables. This is not likely to change in the near future.

Aici (*).

Articol despre conflictul intre drepturile fundamentale din perspectiva CEDO, CJCE & a instantelor nationale…

Fundamental Rights and Other Interests - Should it Really Make a Difference?
Janneke H. Gerards

University of Leiden, Department of Public Law
In: Brems, E. (ed.), Conflicts between Fundamental Rights, Antwerp/Oxford: Intersentia 2008

Abstract:     
When speaking about conflicts between fundamental rights, we have the impression that we speak about something special. Courts appear to be willing to decide a case concerning an infringement of a classic fundamental right, such as a civil or political right, since they feel they can do so on the basis of clear legal standards. On the other hand, they are reluctant to adjudicate claims concerning social or economic interests, as they consider political and policy arguments to be of more importance there. Accordingly, courts generally show a larger measure of deference in the latter type of case than in cases concerning clearly identifiable individual interests or rights.The question is, however, whether the distinction we make between classic fundamental rights and other interests is always reasonable and if it is justifiable to attach far-reaching judicial consequences to the distinction. The choice of judicial method and intensity of review should not solely depend on the question whether an individual interest is protected by national or international instruments containing enforceable fundamental rights. This thesis is elaborated in this paper on the basis of the case law of the European Court of Human Rights, the European Court of Justice and administrative courts in the Netherlands and the United Kingdom. On basis of these case law analyses, conclusions are reached regarding the difference between fundamental rights and interests in the assessment methods of national and European courts. Also, a tentative effort is made to formulate an alternative approach.

Aici (*).

Articol de la Harvard despre practicile abuzive de creditare. La ei, adica la SUA

Can States Tax National Banks to Educate Consumers About Predatory Lending Practices?
Howell E. Jackson, Harvard Law School
Stacy A. Anderson

ABSTRACT:
Over the past quarter century, consumer lending markets in the United States have become increasingly national in scope with large national banks and other federally chartered institutions playing an ever important role in many sectors, including credit card lending and home mortgages. At the same time, a series of court decisions have ruled that a wide range of state laws regulating credit card abuses and predatory mortgage lending practices are preempted at least as applied to national banks and other federally chartered institutions. Given the dominant role of federal institutions in our country’s lending markets, these rulings have narrowed the capacity of states to police local lending transactions. As an alternative to direct regul