Law Commons^™

What Can Europe Tell Us About The Future Of American Federalism?, Ernest A. Young

Faculty Scholarship

No abstract provided.

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental …

Does Brexit Spell The Death Of Transnational Law?, Ralf Michaels

Faculty Scholarship

The British leave vote in the referendum on EU membership has important implications for how we think about law . The vote must be viewed as a manifestation of a globalized nationalism that we find in many EU member states and many other countries. As such, it is also a challenge of the idea of transnational law, forcefully introduced in Jessup’s book on Transnational law 60 years ago. In this paper, I suggest that the hope to return from transnational law to the nation state of the 19th century is nostalgic and futile. However, I argue that transnational law has …

International Courts As Agents Of Legal Change: Evidence From Lgbt Rights In Europe, Laurence R. Helfer, Erik Voeten

Faculty Scholarship

Do international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? The authors develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. The authors examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual and transgender (LGBT) issues by creating a new dataset that matches these rulings with laws in all Council of Europe (CoE) member states. The …

The Greek Debt Restructuring: An Autopsy, Jeromin Zettelmeyer, Christoph Trebesch, Mitu Gulati

Faculty Scholarship

The Greek debt restructuring of 2012 stands out in the history of sovereign defaults. It achieved very large debt relief—over 50 percent of 2012 GDP—with minimal financial disruption, using a combination of new legal techniques, exceptionally large cash incentives, and official sector pressure on key creditors. But it did so at a cost. The timing and design of the restructuring left money on the table from the perspective of Greece, created a large risk for European taxpayers, and set precedents—particularly in its very generous treatment of holdout creditors—that are likely to make future debt restructurings in Europe more difficult.

The Problem Of Holdout Creditors In Eurozone Sovereign Debt Restructuring, Mitu Gulati, Lee C. Buchheit, Ignacio Tirado

Faculty Scholarship

The Eurozone official sector has declared that the belated restructuring of Greek bonds held by private sector creditors in 2012 was a “unique and exceptional” event, never, ever to be repeated in any other Eurozone country. Maybe so. But if this assurance proves in time to be as fragile as the official sector’s prior pronouncements on the subject of “private sector involvement” in Eurozone sovereign debt problems, any future Eurozone debt restructuring will be surely plagued by the problem of non-participating creditors --- holdouts. Indeed, it is the undisguised fear of holdouts and the prospect of a messy, Argentine-style debt …

Where Should Europe’S Investment Path Lead?: Reflections On August Reinisch, “Quo Vadis Europe?”, Julie A. Maupin

Faculty Scholarship

Relative to the past policies of its Member States, will the European Union’s new comprehensive international investment policy constitute a step forward, a step backward, or a perpetuation of the status quo? Professor Reinisch’s contribution to this volume opens a wide window on the current state of the debate. His cogent analysis suggests that, at present, all three possibilities remain live ones, although some basic contours of a likely trajectory are beginning to take shape. I use his musings as a springboard to investigate two questions which follow naturally from his. That is, in view of Professor Reinisch’s response to …

The Burdens And Benefits Of Brighton, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

When Copyright Law And Science Collide: Empowering Digitally Integrated Research Methods On A Global Scale, Jerome H. Reichman, Ruth L. Okediji

Faculty Scholarship

Automated knowledge discovery tools have become central to the scientific enterprise in a growing number of fields and are widely employed in the humanities as well. New scientific methods, and the evolution of entirely new fields of scientific inquiry, have emerged from the integration of digital technologies into scientific research processes that ingest vast amounts of published data and literature. The Article demonstrates that intellectual property laws have not kept pace with these phenomena.

Copyright law and science co-existed for much of their respective histories, with a benign tradition of the former giving way to the needs of the latter. …

Cds Zombies, Anna Gelpern, Mitu Gulati

Faculty Scholarship

This paper examines the contract interpretation strategies adopted by the International Swaps and Derivatives Association (ISDA) for its credit derivatives contracts in the Greek sovereign debt crisis. The authors argue that the economic function of sovereign credit default swaps (CDS) after Greece is limited and uncertain, partly thanks to ISDA’s insistence on textualist interpretation. Contract theory explanations for textualist preferences emphasise either transactional efficiency or relational factors, which do not fit ISDA or the derivatives market. The authors pose an alternative explanation: the embrace of textualism in this case may be a means for ISDA to reconcile the competing political …

The Eurozone Debt Crisis: The Options Now, Mitu Gulati, Lee C. Bechheit

Faculty Scholarship

The Eurozone debt crisis is entering its third year. The original objective of the official sector’s response to the crisis -- containment -- has failed. All of the countries of peripheral Europe are now in play; three of them (Greece, Ireland and Portugal) operate under full official sector bailout programs.

The prospect of the crisis engulfing the larger peripheral countries, Spain and Italy, has sparked a new round of official sector containment measures. These will involve active intervention by official sector players such as the European Central Bank in order to preserve market access for the affected countries.

This article …

Engineering An Orderly Greek Debt Restructuring, Mitu Gulati, Jeromin Zettelmeyer

Faculty Scholarship

For some months now, discussions over how Greece will restructure its debt have been constrained by the requirement that the deal be “voluntary” – implying that Greece would continue debt service to any creditors that choose retain their old bonds rather than tender them in an exchange offer. In light of Greece’s deep solvency problems and lack of agreement with its creditors so far, the notion of a voluntary debt exchange is increasingly looking like a mirage. In this essay, we describe and compare three alternative approaches that would achieve an orderly restructuring but avoid an outright default: (1) “retrofitting” …

Code Vs. Code: Nationalist And Internationalist Images Of The Code Civil In The French Resistance To A European Codification, Ralf Michaels

Faculty Scholarship

French academics reacted to announcements about a possible future European civil code ten years ago in the way in which Americans reacted to the Japanese attack on Pearl Harbor 1940: first with shock, then with rearmament, finally with attempted counterattacks. Military metaphors abound. Yet the defense of the French Code Civil against a European civil code is tricky: they must defend one Code against another. The images drawn of codes are therefore of particular interest for our understanding both of civil codes and of legal nationalism. Often, two mutually exclusive images are presented at the same time. In cultural terms, …

Rollen Und Rollenverständnisse Im Transnationalen Privatrecht [Roles And Role Perceptions In Transnational Private Law], Ralf Michaels

Faculty Scholarship

Downloadable Document is in German

Summary

1. The private lawyer’s role is inseparably connected with the paradigms and doctrines of private law. This is so because the role played by private lawyers constitutes a large part of their understanding of the discipline. At the same time, the shared understanding of the discipline has necessary consequences for the roles played by lawyers in it.

2. Roles and role perceptions in private law are contingent upon space and time. The most important factor affecting private lawyers today is the growing detachment of private law from the state, through globalization, Europeanization, and privatization …

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting—the Data Retention Directive. Based on a detailed examination of the Directive’s legislative history, the …

Database Protection In A Global Economy, Jerome H. Reichman

Faculty Scholarship

In 1996, a database treaty that the European Commission had put forward, in connection with the WIPO negotiations on transmissions in cyberspace, ultimately failed to win the support of other regional groups. Since then, the inability of the United States Congress to enact any form of database legislation has stymied further multilateral undertakings on this topic. This impasse may soon be broken, however, owing to the change of Administrations and to the appointment of new committee chairmen in the United States House of Representatives.

This article will discuss the prospects for an international regulatory framework for non copyrightable databases in …

Calling The Tune Or Following The Lead: The European Court Of Justice In European Policy Making, Rachel D. Brewster

Faculty Scholarship

No abstract provided.