Law Commons^™

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 …

Reforming Surveillance Law: The Swiss Model., Susan Freiwald, Sylvain Méille

Susan Freiwald

As implemented over the past twenty-seven years, the Electronic Communications Privacy Act (“ECPA”), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law, CrimPC, regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This Article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, Swiss CrimPC presents a model for more fundamental reform of U.S. law.

This Article is the first to analyze the Swiss law with international eyes and demonstrate its advantages over the U.S. …

Structural Guarantees For The State Aid Field. The Community's Last Best Hope Against National Arbitrariness., Angelica Ericsson

Angelica Ericsson

In line with current tendencies of ‘new modes of governance’, this essay introduces judicial tools, which strike a balance between the respect for national autonomy in individual assessments and the effective implementation of Community law. The balance is struck through the demands of structural guarantees; administrative safeguards, which weed out arbitrary national decision-making. These administrative safeguards are particularly needed in areas where the Member States of the EU have been granted a wide margin of discretion.

Examples of demands for structural guarantees are the provision of transparent and accessible legislation and administrative procedures based on objective criteria, as well as …

Structural Guarantees - The Union's Last Best Hope Against National Arbitrariness, Angelica Ericsson

Angelica Ericsson

In line with current tendencies of ‘new governance’, this article will introduce a novel judicial tool which strikes a balance between the respect for national assessments and the effective implementation of Union law.This balance can be struck through the demands of structural guarantees; administrative safeguards, which weed out arbitrary national decision-making. The provision of transparent and accessible legislation, administrative procedures based on objective criteria, as well as the access to effective judicial review are all specific examples of structural guarantees. Together they create a system of checks to prevent discretion from turning into arbitrariness. All of these demands are ultimately …