Law Commons^™

The Sanction Regime Applicable To An Illegal Direct Award Initiated Before The Remedies Directive Has Taken Full Effect, Emanuela A. Matei

Emanuela A. Matei

The respect due to the transparency principle in public procurement law is embodied by the obligation to publish in advance a contract award notice. In Sweden an award in breach of the named obligation is subject to a stricter regime of penalties according to national law, though the application of the prescribed sanction has been limited to awards being initiated subsequent to 15 July 2010. Judicial proceedings at last instance have been kept and a final judgment has been given in favour of the contracting authority. The Supreme Administrative Court interprets the national public procurement law by making reference to …

Seconda Giornata Della Bilateralità - 5 Dicembre 2013, Michele Faioli

Michele Faioli

Workshop di presentazione della ricerca sulla bilateralità italiana e europea

ევროკავშირის მმართველობის კონსტიტუციური პრინციპები, Giorgi Alasania

Giorgi Alasania

No abstract provided.

A Propósito De Un Elemento Esencial De La Defensa De La Competencia En Europa: Las Facultades De Investigación De La Comisión En Materia De Inspección (About An Essential Element Of The European Antitrust: Commission Investigation Faculties Of Inspection), Jesús Alfonso Soto Pineda

Jesús Alfonso Soto Pineda

En base a la prolongación de las facultades de investigación que le han sido proporcionadas a la Comisión Europea para combatir la existencia de acuerdos colusorios en el ámbito comunitario, el presente artículo expone las condiciones en las cuales el poder percibido con mayor sensibilidad desde el terreno empresarial, la inspección, debe ser puesto en marcha por la máxima autoridad comunitaria de competencia, analizando en detalle la contradicción natural que se presenta entre los objetivos propios de la inspección y dos postulados básicos relacionados con el derecho de defensa, como lo son el secreto profesional y el derecho a guardar …

Cjeu, Can You Hear Me? Access To Justice In Environmental Matters, Sanja Bogojevic

Sanja Bogojević

Over the years, much ink has been spilled in the debate on standing of NGOs before the EU courts. This issue has been the object of particular consideration following the ruling in the Greenpeace case where the General Court denied the NGO in question standing on the basis that it did not ‘adduce any special circumstances to demonstrate the individual interest of their members’. Considering that environmental NGOs tend to represent the interests of society as a whole, or that of the environment in particular, imposing this kind of conditioning seems unreasonable. Indeed, this judgment, coupled with the more general …

La Dialettica Di Principî E Regole Nel Diritto Europeo Deicontratti: Dal Pecl Al Cesl, E Oltre, Pietro Sirena

Pietro Sirena

The article aims at challenging the current definitions of the principles of law from the point of view of the European legal system. Its multi-levelled structure and its constitutional architecture, strongly based on the subsidiarity of the European Union, call for a new understanding of its principles. The authors of the article assume that the principles of European law are to be identified with the common core of the national legal orders, i.e. with the ius commune Europaeum, and with the constitutional condition of its application by the European Court of Justice. Such principles should be obtained through the critical …

Il Primo Scoglio Del Diritto Di Iniziativa Dei Cittadini Europei, Andrea Simoncini Prof.

Erik Longo

In the next few months the General Court of the European Union will rule on the issue of the admissibility of an European Citizens’ Initiative (hereinafter ECI) rejected on 6th September 2012 by the European Commission. This judgment is expected as one of the first assessment of the brand new instrument for participatory democracy introduced in the Lisbon Treaty (Article 11 of TUE). ECI is designed to allow the citizens to take an active role within the lawmaking process of the EU. One million citizens who fulfill a petition to call on the Commission have the right to propose a …

Economic Thought And Climate Disruption: Neoclassical And Economic Dynamic Approaches In The Usa And The Eu, Sanja Bogojevic, David Driesen

Sanja Bogojević

In this article we consider the economic ideas that have influenced climate disruption law both in the USA and the EU. Although economic thought has led to the adoption of ‘market-based’ mechanisms in both places, its impact has been different: it created regulatory inertia in the USA, and green leadership in the EU—at least with respect to responding to climate disruption. We argue that different culture-specific economic conceptions about appropriate policy and policy analysis may help explain this divergence, thereby illustrating both various economic ideas and their distinct impact on climate law, as well as the need for environmental lawyers …

Subsidiarity In The Tradition Of Catholic Social Doctrine, Patrick Brennan

Patrick McKinley Brennan

This chapter is an invited contribution to the first English-language comparative study of subsidiarity, M. Evans and A. Zimmerman (eds.), Subsidiarity in Comparative Perspective (forthcoming Springer, 2013). The concept of subsidiarity does work in many and varied legal contexts today, but the concept originated in Catholic social doctrine. The Catholic understanding of subsidiarity (or subsidiary function) is the subject of this chapter. Subsidiarity is often described as a norm calling for the devolution of power or for performing social functions at the lowest possible level. In Catholic social doctrine, it is neither. Subsidiarity is the fixed and immovable ontological principle …

The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan

Patrick McKinley Brennan

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Flawed Transparency: Shared Data Collection And Disclosure Challenges For Google Glass And Similar Technologies, Jonathan I. Ezor

Jonathan I. Ezor

Current privacy law and best practices assume that the party collecting the data is able to describe and disclose its practices to those from and about whom the data are collected. With emerging technologies such as Google Glass, the information being collected by the wearer may be automatically shared to one or more third parties whose use may be substantially different from that of the wearer. Often, the wearer may not even know what information is being uploaded, and how it may be used. This paper will analyze the current state of U.S. law and compliance regarding personal information collection …

The Crisis Of A Legal Framework: Protection Of Victims Of Human Trafficking In The Bulgarian Legislation, Vladislava Stoyanova

Vladislava Stoyanova

The Council of Europe Group of Experts on Action against Trafficking in Human Beings reported that in Bulgaria no adult victim of human trafficking received any assistance and that no adult victim was granted a reflection period. A close examination of the Bulgarian legislative framework could explain this unpromising picture. In this article, I develop three arguments in relation to the Bulgarian legislation on protection of trafficked persons. First, in some respects, Bulgaria has failed to fulfil its international obligations. Second, the national legal framework regulating the conditions under which trafficked person are assisted and protected is surrounded by legal …

Parenthood Meets Market-Functionalism: Parental Rights In The Labour Market And The Importance Of Gender, Jenny Julén Votinius

Jenny Julén Votinius

No abstract provided.

„Zuerst Schlichten, Dann Richten“: O Modelo Suíço De Solução De Litígios Pré-Processual É Adequado Para O Brasil?, Nelson Rodrigues Netto

Nelson Rodrigues Netto

Dieser Aufsatz analysiert die Schlichtung und die Mediation in der Schweizerische Zivilprozessordnung.

Intersections Of Age And Gender, Jenny Julén Votinius

Jenny Julén Votinius

No abstract provided.

Eu Climate Change Litigation, The Role Of The European Courts, And The Importance Of Legal Culture, Sanja Bogojevic

Sanja Bogojević

The purpose of this article is to show it is only in light of legal culture that climate change jurisprudence in the EU can be explained. Examining the case law concerning the EU Emissions Trading Scheme, this article demonstrates that climate change proceedings in the EU raise questions that stand at the heart of the EU legal order; that is, they demand that the boundaries of the EU’s regulatory competences are drawn. In effect, the EU courts focus on ensuring that EU climate change laws are in accord with the rule of law or, in the context of EU law, …

The Impact Of The Treaty On Stability, Coordination And Governance On The National Constitutional Structure: The Regional Example, Giuseppe Martinico

Giuseppe Martinico

Emissions Trading Schemes: Markets, States And Law, Sanja Bogojevic

Sanja Bogojević

Over the past four decades emissions trading schemes have enjoyed a high profile in environmental law scholarship and environmental law and policy. Much of this regulatory discussion has promoted the use of emissions trading on the basis of its alleged straightforwardness in terms of construction and operation and wide applicability across different jurisdictions and environmental settings. This book challenges the common understanding of emissions trading by offering a more nuanced prism through which to view this regulatory choice. As such, it shows how different regulatory goals are entrusted to emissions trading, each having as its corollary particular governance structures, which, …

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Rodger Citron

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

Justifications And Proportionality: An Analysis Of The Ecj's Assessment Of National Rules For The Prevention Of Tax Avoidance, Maria Hilling

Maria Hilling

This article deals with the limitations imposed by the Treaty on the Functioning of the European Union (TFEU) on Member States´right to prevent tax avoidance and protect national tax bases. It focuses on some recent ECJ case law developments. One central question concerns the implications of the legal situation for Member States´ tax legislators.

My Paper Makes Ssrn Top Ten List, Gabriela Steier

Gabriela Steier

My paper, "THE WTO'S BLIND SPOT: DISPUTE RESOLUTION IN THE INTERNATIONAL FOOD INDUSTRY", was recently listed on SSRN's Top Ten download list for: Food Law & Policy eJournal, PSN: Politics of the WTO (Topic), PSN: Politics of the WTO (Topic), SRPN: Agribusiness (Topic), SRPN: Biotechnology (Topic), SRPN: Politics of Food (Topic) and SRPN: World Trade Organisation (Topic).

The European View Of American Justice, Allen E. Shoenberger

Allen E Shoenberger

No abstract provided.

Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette

Daniel R. Coquillette

The parallels between Francis Bacon’s career and that of Edward H. Cooper are obvious. Bacon was one of the great legal minds of his day and, unlike the common law judges who formed the law by deciding cases, Bacon expressed his greatness in writing brilliant juristic treatises and, as Lord Chancellor, drafting one of the first modern rule systems, the Ordinances in Chancery (1617-1620). My thesis is that Bacon invented modern, scientific rulemaking by fusing his new theories of inductive, empirical research with the traditions of equitable pleading, and is, in fact, the intellectual forebearer of the likes of Charles …

Understanding The Obstacles To The Recognition And Enforcement Of U.S. Judgments Abroad, Samuel P. Baumgartner

Samuel P. Baumgartner

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to …

Wie Doet Wat? Over De Rede Van David Cameron En De Verdeling Van Bevoegdheden Tussen De Europese Unie En De Lidstaten, Jan M. Smits

Jan M Smits

De verdeling van bevoegdheden tussen de Europese Unie en de lidstaten staat sterk in de belangstelling. In deze bijdrage wordt ingegaan op de vraag of meer te zeggen valt over wie wat moet doen in Europa. Onderzocht wordt welke bijdrage juristen, economen en politicologen tot nu toe aan dit debat hebben geleverd. Vervolgens wordt een aanzet gedaan voor de ontwikkeling van een kader dat kan helpen om de vraag naar de optimale bevoegdheidsverdeling te beantwoorden.

The Regulation Of U.S. Money Market Funds: Lessons From Europe, Latoya C. Brown

Latoya C. Brown, Esq.

The recent financial crisis challenged long held perceptions of money market funds (“MMFs”) as stable and highly liquid instruments. Regulators in the US and in Europe now seek to impose additional rules on MMFs to avoid another significant failure as happened to the Reserve Fund. In the US, the debate is drawing even more media attention as question of which regulatory body - such as the Securities and Exchange Commission, the Treasury Department, and the Financial Stability Oversight Council – should lead the way has taken interesting twists and turns. This paper examines primary reform options being proposed in the …

Principles And Rules In The Emerging Euoropean Contract Law: From The Pecl To The Cesl, And Beyond, Dr. Yehuda Adar, Prof. Pietro Sirena

Yehuda Adar Dr.

Legal principles play an important role in any system of law. Following the European Court of Justice, the treaties of the European Union have embraced the concept of “principles of law”, mainly as a means to guarantee individual and human rights in public and constitutional law. More recently, however, the ECJ has come to recognize as “general principles” private law and contract law norms and values. Furthermore, the notion of “principles” has played a key role in impressive unification projects which aimed to promote harmonization of national contract laws in Europe, such as the PECL (“Principles of European Contract Law”) …

Is Torture Justified In Terrorism Cases?: Comparing U.S. And European Views, Stephen P. Hoffman

Stephen P. Hoffman

This essay discusses issues of torture and some of the philosophical underpinnings. First, I define torture as it is used in international and human rights law. Then, I discuss three primary theories of torture: deontology, consequentialism, and threshold deontology. After setting this groundwork, I introduce particular issues in terrorism cases such as the “ticking bomb” scenario, which is often used to argue that torture may be appropriate and possibly required when done to save many lives. This invariably must include a discussion of the necessity doctrine, the legal doctrine allowing an individual to take extraordinary — even illegal — measures …

Euthanasia And Physician-Assisted Suicide: A Comparison Of Eu And U.S. Law, Stephen Hoffman

Stephen P. Hoffman

This paper examines the controversial and complex issues of euthanasia and physician-assisted suicide (PAS). I begin by defining and distinguishing these two terms and explain how they relate to each other. I also describe the medical doctrine of double effect, in which relieving pain comes at the expense of hastening death. Then, I give a brief overview of the common law defense of necessity, which is practically the sole defense available to or used by physicians accused of committing euthanasia or PAS. Finally, I analyze the legal doctrines of euthanasia and PAS, focusing on legislation and cases in the European …