Law Commons^™

Extraterritoriality, Francesca Bignami, Giorgio Resta

GW Law Faculty Publications & Other Works

This chapter argues that the competing American ballot-box and European fundamental rights paradigms of regulatory law have marked the specific domain of digital regulation. These regulatory paradigms and their associated state interests are projected extraterritorially through the market power of Silicon Valley, on the one hand, and the privacy rights of European Union (EU) regulators, on the other hand. This chapter also analyzes recent developments in the EU, where there is now a state effort to make digital markets and, relatedly, an emerging preference for some data localization to promote both fundamental rights and economic and security interests. In China, …

Review Essay: Marta Cartabia And Nicola Lupo, “The Constitution Of Italy: A Contextual Analysis” (2023), Francesca Bignami

GW Law Faculty Publications & Other Works

In this review essay, I showcase aspects of Marta Cartabia’s and Nicola Lupo’s The Constitution of Italy that set it apart from standard texts and that make it an excellent resource on Italian government and public law. Then, I focus on two elements of the Italian constitutional order that are discussed in the book and that are unique when seen in comparative context—the non-hierarchical organization of the Italian judiciary and the salience of social rights. I argue that future research on these aspects of the Italian case could make an important contribution to cutting-edge debates in the field of comparative …

Methodologies Of Comparative Constitutional Law: Functional Approach The Max Planck Encyclopedia Of Comparative Constitutional Law (Forthcoming), Francesca Bignami

GW Law Faculty Publications & Other Works

This encyclopedia entry conceptualizes methodology in comparative constitutional law as divided into consumption-side and production-side methodologies. Many of the labels in the field refer to types of consumption of comparative law by constitutional judges and constitution-writers—expressivist, universalist, functionalist. Other labels refer to types of production by scholars situated in the academy—black-letter, historical, contextual, classificatory, critical.

The functional approach, one form of consumption by constitutional judges and constitution-drafters, uses the law of other jurisdictions to explore various alternatives to solving common constitutional problems. Once the alternatives are exposed, the decision to adopt a foreign judicial doctrine or legal text is driven …

Order And Law In China, Donald C. Clarke

GW Law Faculty Publications & Other Works

The near half-century of the post-Mao era has almost universally been called one of construction of China’s legal system. But while great changes have taken place in China’s public order and dispute resolution institutions, other things have changed little or not at all. Most commentary focuses on the changes; this article, by contrast, will look at what has not changed—the important continuities that have persisted for over four decades.

This article argues that the scholarly community has accumulated over the past four decades a number of observations about China’s order maintenance institutions that are increasingly difficult to explain using the …

Material Liberty And The Administrative State: Market And Social Rights In American And German Law, Francesca Bignami

GW Law Faculty Publications & Other Works

This chapter begins with a forgotten story from American constitutional law. Raymond Belcher worked for a coal mining company in Lynco, West Virginia. During his working life, he paid into the federal insurance scheme for disability—Social Security Disability Insurance (SSDI). Belcher later broke his neck on the job and claimed on his federal SSDI insurance. But he was in for a bad surprise. In 1965, after he began contributing but before he became disabled, Congress enacted an “offset” provision to reduce benefits for individuals like him who qualified for both state-run worker’s compensation and federal SSDI. Belcher went all the …

The German Right To Fiscal Stability And The Counter-Majoritarian Difficulty: The Pspp Judgment Of 5 May 2020, Francesca Bignami

GW Law Faculty Publications & Other Works

The PSPP litigation involved the European Central Bank’s (ECB’s) Public Sector Purchase Programme for the purchase of government bonds on the secondary market with the aim, among others, of combating deflation. Although the Court of Justice of the EU (CJEU) found the PSPP lawful, the German Federal Constitutional Court (FCC) disagreed: On May 5, 2020, the FCC held that the CJEU’s judgment was not binding in Germany and that the PSPP was unlawful and required further ECB action to bring it into compliance with German law.

This article contributes to the growing scholarship on the PSPP litigation by analyzing the …

Rethinking The Legal Foundations Of The European Constitutional Order: The Lessons Of The New Historical Research, Francesca Bignami

GW Law Faculty Publications & Other Works

This essay examines the implications of new historical research on the origins of EU law for legal theory. Based on a review of the recent work of Morten Rasmussen, Bill Davies, Anne Boerger-de Smedt, Karin van Leeuwen, and Alexandre Bernier, the essay demonstrates how this historical research improves our understanding of two important themes in comparative law—comparative legal traditions and legal transplants. By examining the legal actors in different jurisdictions responsible for building an area of public law—the economic law of the fledgling European Communities—the new historical research contributes to the legal traditions literature on legal elites, which has traditionally …

Reconciling Personal Information In The United States And European Union, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

US and EU privacy law diverge greatly. At the foundational level, they diverge in their underlying philosophy: In the US, privacy law focuses on redressing consumer harm and balancing privacy with efficient commercial transactions. In the EU, privacy is hailed as a fundamental right that trumps other interests. Even at the threshold level - determining what information is covered by the regulation - the US and EU differ significantly. The existence of personal information - commonly referred to as “personally identifiable information” (PII) - is the trigger for when privacy laws apply. PII is defined quite differently in US and …

Comparative Administrative Law, Francesca Bignami

GW Law Faculty Publications & Other Works

This chapter provides an overview of comparative administrative law, with particular attention to European jurisdictions and the United States. The underlying conceptual similarity that serves to organize the comparative analysis is the purpose, common to these systems, of rendering public administration both capable and expert, on the one hand, and accountable to a variety of liberal democratic actors, on the other hand. The chapter first discusses what historically was the principal legal tool for achieving neutrality and expertise—the legal guarantees of civil service employment—together with national variations in the professionalization of administration. It then turns to three important types of …

‘Nothing But Wind’? The Past And Future Of Comparative Corporate Governance, Donald C. Clarke

GW Law Faculty Publications & Other Works

Corporate law scholarship has come a long way since Bayless Manning some four decades ago famously pronounced it dead. Not only has doctrinal scholarship continued its project of critique and rationalization, but empirical and economic approaches have injected new life into the field.

Recent years have seen the rise of comparative corporate governance (CCG) as an increasingly mainstream approach within the world of corporate governance studies. This is a function partly of an increasing international orientation on the part of legal scholars and partly of an increasingly empirical turn in corporate law scholarship generally. Different practices in other jurisdictions present …

Constitutional Patriotism And The Right To Privacy: A Comparison Of The European Court Of Justice And The European Court Of Human Rights, Francesca Bignami

GW Law Faculty Publications & Other Works

This chapter examines attitudes towards national diversity in one piece of the emerging European constitution-the right to privacy. There is a thick constitutional culture of privacy in Europe. The familiar debate of how to balance the right to privacy against freedom of expression, the market, and public security can be heard in many places: before the Court of Justice and the European Court of Human Rights, in the European Parliament and the European Council, and before Europe's numerous data privacy ombudsmen. And in these places, the less familiar problem of tolerance of diversity within Europe, among Europe's different national communities, …

The Case For Tolerant Constitutional Patriotism: The Right To Privacy Before The European Courts, Francesca Bignami

GW Law Faculty Publications & Other Works

The theory of constitutional patriotism has been advanced as a solution to the European Union's legitimacy woes. Europeans, according to this theory, should recognize themselves as members of a single human community and thus acknowledge the legitimacy of Europe-wide governance based on their shared belief in a common set of liberal democratic values. Yet in its search for unity, constitutional patriotism, like nationalism and other founding myths, carries the potential for the exclusion of others. This article explores the illiberal tendencies of one element of the liberal canon - the right to privacy - in the case law of Europe's …

The Worldwide Popular Revolt Against Proportionality In Self-Defense Law, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

This article examines popular dissatisfaction with the proportionality standard in self-defense law, which holds that the prevention of harm cannot be achieved by causing harm that is disproportionate. Legal elites, such as prosecutors, judges, and legal scholars, have long championed versions of this standard. But there is an increasingly widespread movement in the United States and Europe to modify elite notions of proportionality.

Common to these movements is the desire to replace complicated balancing tests with clearer rules, which would limit the discretion of prosecutors and judges, and to permit use of deadly force against attackers in more situations. Fueling …

Privacy's Other Path: Recovering The Law Of Confidentiality, Daniel J. Solove, Neil M. Richards

GW Law Faculty Publications & Other Works

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the …

Protecting Privacy Against The Police In The European Union: The Data Retention Directive, Francesca Bignami

GW Law Faculty Publications & Other Works

This essay examines the European Union's new turn towards protecting personal data against the police. The first part explores the developments that have given rise to these policies: the dramatic possibilities of today's digital technologies for the police and the intensification of police cooperation in the European Union following the terrorist attacks in New York, Madrid, and London. The second part analyzes the piece of legislation with the most significant data protection ramifications to be enacted at the time of this writing: the Data Retention Directive. The essay concludes with some thoughts on how the largely positive rights experience of …

China's Legal System And The Wto: Prospects For Compliance, Donald C. Clarke

GW Law Faculty Publications & Other Works

The impact of WTO membership both on China and its trading partners, both for good and for ill, has been greatly overstated. WTO treaty obligations and Dispute Settlement Body rulings will not become part of Chinese domestic unless specifically incorporated by Chinese legislation. Moreover, the WTO does not require a perfect legal system of its members; instead, it requires a degree of transparency and fairness in certain limited areas. Although some of China's WTO commitments will be difficult for it to fulfill, even non-fulfillment will not result in the predicted flood of WTO dispute settlement proceedings, since such proceedings can …

Review Of Rulemaking, Participation And The Limits Of Public Law In The Usa And Europe By Theodora Th. Ziamou And Review Of Governing By Numbers: Delegated Legislation And Everyday Policy-Making, By Edward C. Page, Francesca Bignami

GW Law Faculty Publications & Other Works

This article reviews two books: Rulemaking, Participation and the Limits of Public Law in the USA and Europe by Theodora Th. Ziamou and Governing by Numbers by Edward C. Page. In Rulemaking, Ziamou compares the law of rulemaking in the United States, Germany, Greece, and England. Ziamou covers the distinction between administrative rules and other administrative acts, the constitutional law of rulemaking, rulemaking procedure, the ability of private organizations to adopt rules that bind themselves and third parties, and judicial review. Readers are left with a better understanding of American and European rulemaking but may not be convinced that Europe …

The Intersection Of Two Systems: An American On Trial For An American Murder In The French Cour D'Assises, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

This study discusses a murder case in France's trial court for the most serious crimes, the Cour d'assises. The case was highly unusual because the person on trial was an American, accused of having murdered other Americans in the United States. For reasons given below, cases in which crimes committed in the United States are tried abroad are likely to become more common. This study describes how such a case proceeds, including some of the difficulties that can arise from combining two investigations controlled by very different systems of procedure. An advice section is given for American prosecutors and defense …