Aida Torres Pérez
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199568710
- eISBN:
- 9780191705571
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199568710.001.0001
- Subject:
- Law, EU Law
This book focuses on the potential for conflict between overlapping constitutional and EU fundamental rights. When constitutional and EU rights overlap and the respective interpretations diverge, ...
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This book focuses on the potential for conflict between overlapping constitutional and EU fundamental rights. When constitutional and EU rights overlap and the respective interpretations diverge, state courts are asked to follow the standard of protection defined by the European Court of Justice (ECJ). The ECJ's claim to normative authority needs to be justified. This book advocates a theory of supranational judicial authority grounded in the ideal of dialogue. At the outset, it is argued that traditional approaches to constitutional conflicts based upon supremacy should be overcome. A pluralist framework for structuring the interaction between legal systems in the EU not only offers a better account of reality, but it should be welcomed normatively as well. In this context, the ideal of dialogue will contribute to a better understanding and theorizing of the interaction between national and supranational courts interpreting fundamental rights. Despite multiple and varied references to dialogue in the literature, mostly from a descriptive standpoint, there has been no thorough and rigorous account establishing its legitimating potential regarding ECJ adjudication of fundamental rights norms. This book offers a theoretical account of how the legitimacy of ECJ's authority in adjudicating fundamental rights might be grounded in the ideal of dialogue. The arguments underpinning the legitimating potential of dialogue and the prerequisites for judicial dialogue are explored. Thereafter, the implications of dialogue for the mode of judicial reasoning in interpreting fundamental rights are analyzed. Such a theory of supranational judicial authority would serve as a normative model to assess the activity of the ECJ and to improve current institutional practices.Less
This book focuses on the potential for conflict between overlapping constitutional and EU fundamental rights. When constitutional and EU rights overlap and the respective interpretations diverge, state courts are asked to follow the standard of protection defined by the European Court of Justice (ECJ). The ECJ's claim to normative authority needs to be justified. This book advocates a theory of supranational judicial authority grounded in the ideal of dialogue. At the outset, it is argued that traditional approaches to constitutional conflicts based upon supremacy should be overcome. A pluralist framework for structuring the interaction between legal systems in the EU not only offers a better account of reality, but it should be welcomed normatively as well. In this context, the ideal of dialogue will contribute to a better understanding and theorizing of the interaction between national and supranational courts interpreting fundamental rights. Despite multiple and varied references to dialogue in the literature, mostly from a descriptive standpoint, there has been no thorough and rigorous account establishing its legitimating potential regarding ECJ adjudication of fundamental rights norms. This book offers a theoretical account of how the legitimacy of ECJ's authority in adjudicating fundamental rights might be grounded in the ideal of dialogue. The arguments underpinning the legitimating potential of dialogue and the prerequisites for judicial dialogue are explored. Thereafter, the implications of dialogue for the mode of judicial reasoning in interpreting fundamental rights are analyzed. Such a theory of supranational judicial authority would serve as a normative model to assess the activity of the ECJ and to improve current institutional practices.
Gus Van Harten
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552146
- eISBN:
- 9780191711558
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552146.001.0001
- Subject:
- Law, Public International Law
The recent explosion of investment treaty arbitration marks a major transformation of both international and public law, above all because of the manner in which states have delegated core powers of ...
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The recent explosion of investment treaty arbitration marks a major transformation of both international and public law, above all because of the manner in which states have delegated core powers of the courts to private arbitrators. The book outlines investment treaty arbitration as a public law system and demonstrates how the system goes beyond all other forms of international adjudication in giving arbitrators a comprehensive jurisdiction to determine the legality of sovereign acts and to award public funds to businesses that sustain loss as a result of government regulation. The analysis also reveals some startling consequences of transplanting rules of commercial arbitration into the regulatory sphere. For instance, the system allows public law to be interpreted by arbitrators in private as a matter of course with limited scope for judicial review. Also, arbitrators are able to award compensation to investors in ways that go beyond domestic systems of state liability, and these awards may then be enforced in as many as 165 countries, making them more widely enforceable than other adjudicative decisions in public law. The system's mixture of private arbitration and public law undermines accountability and openness in judicial decision-making. But, most importantly, it poses a unique and fundamental challenge to the principle of judicial independence. To address this, the book argues that the system be replaced with an international investment court, properly constituted according to public law principles and made up of tenured judges.Less
The recent explosion of investment treaty arbitration marks a major transformation of both international and public law, above all because of the manner in which states have delegated core powers of the courts to private arbitrators. The book outlines investment treaty arbitration as a public law system and demonstrates how the system goes beyond all other forms of international adjudication in giving arbitrators a comprehensive jurisdiction to determine the legality of sovereign acts and to award public funds to businesses that sustain loss as a result of government regulation. The analysis also reveals some startling consequences of transplanting rules of commercial arbitration into the regulatory sphere. For instance, the system allows public law to be interpreted by arbitrators in private as a matter of course with limited scope for judicial review. Also, arbitrators are able to award compensation to investors in ways that go beyond domestic systems of state liability, and these awards may then be enforced in as many as 165 countries, making them more widely enforceable than other adjudicative decisions in public law. The system's mixture of private arbitration and public law undermines accountability and openness in judicial decision-making. But, most importantly, it poses a unique and fundamental challenge to the principle of judicial independence. To address this, the book argues that the system be replaced with an international investment court, properly constituted according to public law principles and made up of tenured judges.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0003
- Subject:
- Political Science, European Union
The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about ...
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The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.Less
The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0004
- Subject:
- Political Science, European Union
The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of ...
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The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.Less
The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0006
- Subject:
- Political Science, European Union
The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: ...
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The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: the first, to demonstrate that the course of European integration has been profoundly shaped by a system of adjudication managed by the European Court of Justice (ECJ); the second, to test a range of propositions about how the legal system operates, and to trace the effects of the ECJ's case law on policy outcomes, and on the policy‐relevant behaviour of nonjudicial actors. In some areas, including free movement of goods and sex equality, judges – not governments or legislatures or the Member States – have broadly determined the paths along which institutions evolved. Judicial supremacy partly inheres in the ECJ's status as trustee, partly in the dynamics of the constitutionalization process provoked by the ECJ in the mid‐1960s, and partly by the propagation and diffusion of specific techniques of judicial governance, such as those associated with precedent‐based balancing standards. Every chapter of the book presents evidence refuting claims that the ECJ and the national courts operate as relatively perfect ‘agents’ of the Member States or national governments, and shows that the activities of supranational organizations such as the ECJ routinely produce ‘unintended consequences, from the perspective of those who have designed and redesigned the EC. The author concludes that he does not see how theories that make predictions about how integration has proceeded from institutional design can be rescued.Less
The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: the first, to demonstrate that the course of European integration has been profoundly shaped by a system of adjudication managed by the European Court of Justice (ECJ); the second, to test a range of propositions about how the legal system operates, and to trace the effects of the ECJ's case law on policy outcomes, and on the policy‐relevant behaviour of nonjudicial actors. In some areas, including free movement of goods and sex equality, judges – not governments or legislatures or the Member States – have broadly determined the paths along which institutions evolved. Judicial supremacy partly inheres in the ECJ's status as trustee, partly in the dynamics of the constitutionalization process provoked by the ECJ in the mid‐1960s, and partly by the propagation and diffusion of specific techniques of judicial governance, such as those associated with precedent‐based balancing standards. Every chapter of the book presents evidence refuting claims that the ECJ and the national courts operate as relatively perfect ‘agents’ of the Member States or national governments, and shows that the activities of supranational organizations such as the ECJ routinely produce ‘unintended consequences, from the perspective of those who have designed and redesigned the EC. The author concludes that he does not see how theories that make predictions about how integration has proceeded from institutional design can be rescued.
Chester Brown
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199206506
- eISBN:
- 9780191709708
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206506.003.0010
- Subject:
- Law, Public International Law
This concluding chapter notes that the book has asked whether international courts, in interpreting and applying their powers over procedure and remedies, have considered and sought to adopt the ...
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This concluding chapter notes that the book has asked whether international courts, in interpreting and applying their powers over procedure and remedies, have considered and sought to adopt the practices of other international courts. The book examined the sources of procedural and remedial competences of the principal international courts, and analysed the tools available to international courts to engage in cross-fertilization on issues relating to procedure and remedies. It then examined the degree of common practice with respect to several aspects of international adjudication: rules of evidence, the power to grant provisional measures, the power to interpret and revise judgments, and the remedies available in international adjudication. It then proposed various factors which explain the emergence of common practices, and noted limitations to its further development. Finally, it reviewed the practical and theoretical implications of the common law of international adjudication, concluding that it serves as a solid foundation for the further development of a harmonious system of international dispute settlement.Less
This concluding chapter notes that the book has asked whether international courts, in interpreting and applying their powers over procedure and remedies, have considered and sought to adopt the practices of other international courts. The book examined the sources of procedural and remedial competences of the principal international courts, and analysed the tools available to international courts to engage in cross-fertilization on issues relating to procedure and remedies. It then examined the degree of common practice with respect to several aspects of international adjudication: rules of evidence, the power to grant provisional measures, the power to interpret and revise judgments, and the remedies available in international adjudication. It then proposed various factors which explain the emergence of common practices, and noted limitations to its further development. Finally, it reviewed the practical and theoretical implications of the common law of international adjudication, concluding that it serves as a solid foundation for the further development of a harmonious system of international dispute settlement.
Martin Shapiro and Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.001.0001
- Subject:
- Political Science, Comparative Politics
Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and ...
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Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In this book, two leading political scientists present a compilation of their research in 11 papers (some old, some new) that focus on how to build and test a social science and politics of law, courts, and judging. Chapters 1–5 each contain two pieces, one by each author addressing a common topic. Each pair of papers is preceded by co-authored introductions that explain how the materials presented relate to the more general purpose of developing a broad-gauge social science research agenda on law and courts, discuss the original motivations for writing the papers, and trace important (but perhaps not always obvious) connections between the two offerings. Chapter 6 consists of a co-authored piece. The opening chapter features Shapiro’s classic ‘Political Jurisprudence’, and Stone Sweet’s ‘Judicialization and the Construction of Governance’, pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the law-making dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping ‘judicialization of politics’ around the world. Chosen empirical settings include the United States, the GATT–WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria.Less
Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy, and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In this book, two leading political scientists present a compilation of their research in 11 papers (some old, some new) that focus on how to build and test a social science and politics of law, courts, and judging. Chapters 1–5 each contain two pieces, one by each author addressing a common topic. Each pair of papers is preceded by co-authored introductions that explain how the materials presented relate to the more general purpose of developing a broad-gauge social science research agenda on law and courts, discuss the original motivations for writing the papers, and trace important (but perhaps not always obvious) connections between the two offerings. Chapter 6 consists of a co-authored piece. The opening chapter features Shapiro’s classic ‘Political Jurisprudence’, and Stone Sweet’s ‘Judicialization and the Construction of Governance’, pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the law-making dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping ‘judicialization of politics’ around the world. Chosen empirical settings include the United States, the GATT–WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria.
Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0004
- Subject:
- Political Science, Comparative Politics
This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, ...
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This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, in October 2000; it is one of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis. Stone Sweet provides explicit theoretical foundations for the path dependence of legal institutions, and an argument as to why this should matter to social scientists and to lawyers. The paper elaborates a model of adjudication in which institutional development and decision-making are linked through highly organized discursive choice-contexts – meso structures called ‘argumentation frameworks’, which are curated by judges as legal precedents. Litigants and judges are assumed to be rational utility-maximizers, but they are also actors who pursue their self-interest in discursive ways, through argumentation and analogic reasoning, and sustained, precedent-based adjudication leads to outcomes that are both indeterminate and incremental: i.e. they are path dependent. The paper concludes by addressing various implications of the argument which, taken together, define an agenda for research.Less
This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, in October 2000; it is one of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis. Stone Sweet provides explicit theoretical foundations for the path dependence of legal institutions, and an argument as to why this should matter to social scientists and to lawyers. The paper elaborates a model of adjudication in which institutional development and decision-making are linked through highly organized discursive choice-contexts – meso structures called ‘argumentation frameworks’, which are curated by judges as legal precedents. Litigants and judges are assumed to be rational utility-maximizers, but they are also actors who pursue their self-interest in discursive ways, through argumentation and analogic reasoning, and sustained, precedent-based adjudication leads to outcomes that are both indeterminate and incremental: i.e. they are path dependent. The paper concludes by addressing various implications of the argument which, taken together, define an agenda for research.
Timothy A. O. Endicott
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198268406
- eISBN:
- 9780191714795
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268406.001.0001
- Subject:
- Law, Law of Obligations, Philosophy of Law
Vagueness leads to indeterminacies in the application of the law in many cases. This book responds to the challenges that those indeterminacies pose to a theory of law and adjudication. The book puts ...
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Vagueness leads to indeterminacies in the application of the law in many cases. This book responds to the challenges that those indeterminacies pose to a theory of law and adjudication. The book puts controversies in legal theory in a new light, using arguments in the philosophy of language to offer an explanation of the unclarities that arise in borderline cases for the application of vague expressions. However, the book also argues that vagueness is a feature of law, and not merely of legal language: the linguistic and non-linguistic resources of the law are commonly vague. These claims have consequences that have seemed unacceptable to many legal theorists. Because law is vague, judges cannot always decide cases by giving effect to the legal rights and obligations of the parties. Judges cannot always treat like cases alike. The ideal of the rule of law seems to be unattainable. The book offers a new articulation of the content of that ideal. It argues that the pursuit of justice and the rule of law do not depend on the idea that the requirements of the law are determinate in all cases. The resolution of unresolved disputes is an important and independent duty of judges — a duty that is itself an essential component of the ideal of the rule of law.Less
Vagueness leads to indeterminacies in the application of the law in many cases. This book responds to the challenges that those indeterminacies pose to a theory of law and adjudication. The book puts controversies in legal theory in a new light, using arguments in the philosophy of language to offer an explanation of the unclarities that arise in borderline cases for the application of vague expressions. However, the book also argues that vagueness is a feature of law, and not merely of legal language: the linguistic and non-linguistic resources of the law are commonly vague. These claims have consequences that have seemed unacceptable to many legal theorists. Because law is vague, judges cannot always decide cases by giving effect to the legal rights and obligations of the parties. Judges cannot always treat like cases alike. The ideal of the rule of law seems to be unattainable. The book offers a new articulation of the content of that ideal. It argues that the pursuit of justice and the rule of law do not depend on the idea that the requirements of the law are determinate in all cases. The resolution of unresolved disputes is an important and independent duty of judges — a duty that is itself an essential component of the ideal of the rule of law.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0012
- Subject:
- Law, Company and Commercial Law
This chapter considers “public” and hybrid regulatory solutions for boilerplate. It first examines the U.S. preference for private, market solutions, with particular emphasis on its tendency to ...
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This chapter considers “public” and hybrid regulatory solutions for boilerplate. It first examines the U.S. preference for private, market solutions, with particular emphasis on its tendency to provide for disclosure rather than substantive regulation of boilerplate, along with state legislation and judge-made law that goes beyond disclosure to create substantive regulations of contract law in particular areas. It then discusses issues associated with industry-specific regulation; piecemeal “fixes” to current law that may be enacted through legislation, imposed by agency rulemaking, or developed by judge-made law; and hybrid regimes in which private initiatives would be supported or protected by legislation or judge-made law. It also explores regulation in form of black lists, white lists, or grey lists and the problem of piecemeal adjudication. Finally, it looks at comprehensive regulation by drawing on the case of the European Union.Less
This chapter considers “public” and hybrid regulatory solutions for boilerplate. It first examines the U.S. preference for private, market solutions, with particular emphasis on its tendency to provide for disclosure rather than substantive regulation of boilerplate, along with state legislation and judge-made law that goes beyond disclosure to create substantive regulations of contract law in particular areas. It then discusses issues associated with industry-specific regulation; piecemeal “fixes” to current law that may be enacted through legislation, imposed by agency rulemaking, or developed by judge-made law; and hybrid regimes in which private initiatives would be supported or protected by legislation or judge-made law. It also explores regulation in form of black lists, white lists, or grey lists and the problem of piecemeal adjudication. Finally, it looks at comprehensive regulation by drawing on the case of the European Union.
Jonas Christoffersen and Mikael Rask Madsen (eds)
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199694495
- eISBN:
- 9780191729782
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694495.001.0001
- Subject:
- Law, Public International Law, Human Rights and Immigration
This book provides the first comprehensive analysis of the rise and subsequent development of one of the most striking supranational judicial institutions ever created. The book brings together ...
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This book provides the first comprehensive analysis of the rise and subsequent development of one of the most striking supranational judicial institutions ever created. The book brings together leading scholars and practitioners to cast new light on the substantial jurisprudence and perpetual political reform of the Court. The broad analysis based on historical, legal, and social scientific perspectives provides new insight into the lasting institutional crisis of the ECtHR and identifies the lessons that can be learned and taken into account in the shaping of the future of the European Convention on Human Rights and Fundamental Freedoms. The European Court of Human Rights is in many ways an unparalleled success. The European Convention took its own unique path under the leadership of the Strasbourg Court that embarked, during the 1970s, on the development of a more progressive jurisprudence. In the post-Cold War era, it went from being the guarantor of human rights solely in Western Europe to becoming increasingly involved in the transition to democracy and the rule of law in Eastern Europe. Now the protector of the human rights of some 800 million Europeans from forty-seven different countries, the European system is once again deeply challenged — this time by a massive caseload as well as the Member States’ increased reluctance towards the Court.Less
This book provides the first comprehensive analysis of the rise and subsequent development of one of the most striking supranational judicial institutions ever created. The book brings together leading scholars and practitioners to cast new light on the substantial jurisprudence and perpetual political reform of the Court. The broad analysis based on historical, legal, and social scientific perspectives provides new insight into the lasting institutional crisis of the ECtHR and identifies the lessons that can be learned and taken into account in the shaping of the future of the European Convention on Human Rights and Fundamental Freedoms. The European Court of Human Rights is in many ways an unparalleled success. The European Convention took its own unique path under the leadership of the Strasbourg Court that embarked, during the 1970s, on the development of a more progressive jurisprudence. In the post-Cold War era, it went from being the guarantor of human rights solely in Western Europe to becoming increasingly involved in the transition to democracy and the rule of law in Eastern Europe. Now the protector of the human rights of some 800 million Europeans from forty-seven different countries, the European system is once again deeply challenged — this time by a massive caseload as well as the Member States’ increased reluctance towards the Court.
Christopher J. Peters
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195387223
- eISBN:
- 9780199894338
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387223.001.0001
- Subject:
- Law, Philosophy of Law
Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an ...
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Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an answer to this problem of law's authority, one that illuminates the unique appeal of democratic government, the peculiar structure of adversary adjudication, and the contested legitimacy of constitutional judicial review. The book contends that law should be viewed primarily as a device for avoiding or resolving disputes, a function that implies certain core properties of authoritative legal procedures. Those properties—competence and impartiality—give democracy its advantage over other forms of government. They also underwrite the adversary nature of common-law adjudication and the duties and constraints of democratic judges. And they ground a defense of constitutional law and judicial review against persistent objections that those practices are “countermajoritarian” and thus nondemocratic. The work thus canvasses many fundamental problems within the diverse disciplines of legal philosophy, democratic theory, philosophy of adjudication, and public-law theory and suggests a unified approach to unraveling them.Less
Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an answer to this problem of law's authority, one that illuminates the unique appeal of democratic government, the peculiar structure of adversary adjudication, and the contested legitimacy of constitutional judicial review. The book contends that law should be viewed primarily as a device for avoiding or resolving disputes, a function that implies certain core properties of authoritative legal procedures. Those properties—competence and impartiality—give democracy its advantage over other forms of government. They also underwrite the adversary nature of common-law adjudication and the duties and constraints of democratic judges. And they ground a defense of constitutional law and judicial review against persistent objections that those practices are “countermajoritarian” and thus nondemocratic. The work thus canvasses many fundamental problems within the diverse disciplines of legal philosophy, democratic theory, philosophy of adjudication, and public-law theory and suggests a unified approach to unraveling them.
Leslie Green and Brian Leiter (eds)
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199606443
- eISBN:
- 9780191729683
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606443.001.0001
- Subject:
- Philosophy, Moral Philosophy
This work is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general ...
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This work is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning), the philosophical foundations of specific areas of law (from criminal law to evidence to international law), the history of legal philosophy, and related philosophical topics that illuminate the problems of legal theory.Less
This work is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning), the philosophical foundations of specific areas of law (from criminal law to evidence to international law), the history of legal philosophy, and related philosophical topics that illuminate the problems of legal theory.
Louis Kaplow
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691158624
- eISBN:
- 9781400846078
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691158624.003.0006
- Subject:
- Economics and Finance, Economic History
This chapter explores the “paradox of proof.” This paradox grows out of the interplay of two starting points: deeming agreement to require more than demonstration of successful interdependence—such ...
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This chapter explores the “paradox of proof.” This paradox grows out of the interplay of two starting points: deeming agreement to require more than demonstration of successful interdependence—such as by also using certain sorts of communications—and needing to infer the existence of agreement from circumstantial evidence, out of a recognition that parties hide their actions from legal scrutiny. It is assumed that, in adjudication, it frequently will be impossible to observe the communications that the defendant firms employed. Nevertheless, the factfinder must infer whether or not certain means of communication were used, based on what can be observed about market conditions, notably, how conducive they are to successful oligopolistic coordination and whether such successful coordination appears to have occurred.Less
This chapter explores the “paradox of proof.” This paradox grows out of the interplay of two starting points: deeming agreement to require more than demonstration of successful interdependence—such as by also using certain sorts of communications—and needing to infer the existence of agreement from circumstantial evidence, out of a recognition that parties hide their actions from legal scrutiny. It is assumed that, in adjudication, it frequently will be impossible to observe the communications that the defendant firms employed. Nevertheless, the factfinder must infer whether or not certain means of communication were used, based on what can be observed about market conditions, notably, how conducive they are to successful oligopolistic coordination and whether such successful coordination appears to have occurred.
Louis Kaplow
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691158624
- eISBN:
- 9781400846078
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691158624.003.0015
- Subject:
- Economics and Finance, Economic History
This chapter addresses two additional subjects. Institutional issues, which influence the cost and accuracy of investigation and adjudication, are important in fashioning competition rules. Here, the ...
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This chapter addresses two additional subjects. Institutional issues, which influence the cost and accuracy of investigation and adjudication, are important in fashioning competition rules. Here, the chapter is largely confined to identifying issues rather than resolving them. Second, coordinated behavior may involve not only price—the focus of this book—but also nonprice terms, such as product characteristics, territories, and other dimensions of competitive strategy. The logical structure of the analysis presented throughout is largely relevant to nonprice coordination, although, as this chapter shows, the relative importance of different considerations, particularly concerning detection, can differ significantly depending on the nature of the coordination involved.Less
This chapter addresses two additional subjects. Institutional issues, which influence the cost and accuracy of investigation and adjudication, are important in fashioning competition rules. Here, the chapter is largely confined to identifying issues rather than resolving them. Second, coordinated behavior may involve not only price—the focus of this book—but also nonprice terms, such as product characteristics, territories, and other dimensions of competitive strategy. The logical structure of the analysis presented throughout is largely relevant to nonprice coordination, although, as this chapter shows, the relative importance of different considerations, particularly concerning detection, can differ significantly depending on the nature of the coordination involved.
Mark Weston Janis
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579341
- eISBN:
- 9780191722653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579341.003.0004
- Subject:
- Law, Public International Law, Legal History
This chapter shows how the international courts of today are the offspring of 19th-century American utopians, religious enthusiasts by and large untrained in the law. These early proponents of an ...
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This chapter shows how the international courts of today are the offspring of 19th-century American utopians, religious enthusiasts by and large untrained in the law. These early proponents of an international court were active between the War of 1812 and the American Civil War. This half century was the period when the particulars of what became the World Court took on concrete form and when the agitation for such a court became quite strong in America. The ideas and enthusiasm then generated for an international court and organization were thus already in place when, between 1865 and 1945, the concept of an international court and organization captured the imagination of those Americans who promoted and helped institute the three successive forms of the International Court in 1899, 1919, and 1945.Less
This chapter shows how the international courts of today are the offspring of 19th-century American utopians, religious enthusiasts by and large untrained in the law. These early proponents of an international court were active between the War of 1812 and the American Civil War. This half century was the period when the particulars of what became the World Court took on concrete form and when the agitation for such a court became quite strong in America. The ideas and enthusiasm then generated for an international court and organization were thus already in place when, between 1865 and 1945, the concept of an international court and organization captured the imagination of those Americans who promoted and helped institute the three successive forms of the International Court in 1899, 1919, and 1945.
Wendy L. Martinek
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0005
- Subject:
- Psychology, Forensic Psychology
Virtually all appellate courts use groups of judges to decide cases. Accordingly, small group theory is a useful perspective for investigating appellate court decision making. In particular, ...
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Virtually all appellate courts use groups of judges to decide cases. Accordingly, small group theory is a useful perspective for investigating appellate court decision making. In particular, scholarship about group cognition can help make sense of when we can expect judges to rely on legal (e.g., precedent) versus nonlegal (e.g., political preference) factors in the choices they make. In addition, research on the roles and status of group members in relationship to leadership and conformity can help us understand when certain formal (e.g., chief judge) and informal (e.g., freshman judge) roles are likely to structure judicial choice. More generally, placing appellate courts in a small group framework can aid in better understanding the quality of adjudication by focusing on how groups aggregate the expertise of individual group members to produce group outcomes.Less
Virtually all appellate courts use groups of judges to decide cases. Accordingly, small group theory is a useful perspective for investigating appellate court decision making. In particular, scholarship about group cognition can help make sense of when we can expect judges to rely on legal (e.g., precedent) versus nonlegal (e.g., political preference) factors in the choices they make. In addition, research on the roles and status of group members in relationship to leadership and conformity can help us understand when certain formal (e.g., chief judge) and informal (e.g., freshman judge) roles are likely to structure judicial choice. More generally, placing appellate courts in a small group framework can aid in better understanding the quality of adjudication by focusing on how groups aggregate the expertise of individual group members to produce group outcomes.
Emily Sherwin
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0008
- Subject:
- Psychology, Forensic Psychology
Judges confront rules in two ways, as rule-makers and as rule-followers. When a judge decides a case that is not governed by an existing rule, the judge must formulate a rule of decision and ...
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Judges confront rules in two ways, as rule-makers and as rule-followers. When a judge decides a case that is not governed by an existing rule, the judge must formulate a rule of decision and calculate the effects of the rule in future cases. Rule-making is a highly deliberative process, in which the judge must select the rule that will best realize relevant values over the range of cases to which it applies. When a judge decides a case that is governed by a precedent rule, the judge is expected to treat the precedent rule as authoritative. To do this, the judge must follow the rule mechanically, without reflecting on the relationship between the outcome of the rule and the values on which the rule is based. These two tasks — rule-making and rule-following — make different, and possibly conflicting, cognitive demands on judges.Less
Judges confront rules in two ways, as rule-makers and as rule-followers. When a judge decides a case that is not governed by an existing rule, the judge must formulate a rule of decision and calculate the effects of the rule in future cases. Rule-making is a highly deliberative process, in which the judge must select the rule that will best realize relevant values over the range of cases to which it applies. When a judge decides a case that is governed by a precedent rule, the judge is expected to treat the precedent rule as authoritative. To do this, the judge must follow the rule mechanically, without reflecting on the relationship between the outcome of the rule and the values on which the rule is based. These two tasks — rule-making and rule-following — make different, and possibly conflicting, cognitive demands on judges.
Paul H. Robinson
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198258865
- eISBN:
- 9780191681875
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198258865.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book provides a new critique of the often neglected problem of classification within the criminal law. The author presents a discussion of the present conceptual framework of the law, and offers ...
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This book provides a new critique of the often neglected problem of classification within the criminal law. The author presents a discussion of the present conceptual framework of the law, and offers explanations of how and why formal structures do not match the operation of law in practice. In this scholarly exposition of applied criminal theory, the author argues that the current operational structure of the criminal law fails to take account of its different functions. He goes on to suggest new sample codes of criminal conduct and criminal adjudication which mark a real departure from the pragmatic approach which presently dominates code-making. This rounded exploration of the structure of systems of criminal law is an important work for law teachers and policy makers world-wide.Less
This book provides a new critique of the often neglected problem of classification within the criminal law. The author presents a discussion of the present conceptual framework of the law, and offers explanations of how and why formal structures do not match the operation of law in practice. In this scholarly exposition of applied criminal theory, the author argues that the current operational structure of the criminal law fails to take account of its different functions. He goes on to suggest new sample codes of criminal conduct and criminal adjudication which mark a real departure from the pragmatic approach which presently dominates code-making. This rounded exploration of the structure of systems of criminal law is an important work for law teachers and policy makers world-wide.
Neil Duxbury
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198268253
- eISBN:
- 9780191683466
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268253.001.0001
- Subject:
- Law, Philosophy of Law
Chance inevitably plays a role in law but it is not often that we consciously try to import an element of randomness into a legal process. This book explores the potential for the use of lotteries in ...
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Chance inevitably plays a role in law but it is not often that we consciously try to import an element of randomness into a legal process. This book explores the potential for the use of lotteries in social, and particularly legal, decision-making contexts. Utilising a variety of disciplines and materials, the book considers in detail the history, advantages, and drawbacks of deciding issues of social significance by lot and argues that the value of the lottery as a legal decision-making device has generally been underestimated. The very fact that there exists widespread resistance to the use of lotteries for legal decision-making purposes betrays a commonly held belief that legal processes are generally more important than are legal outcomes. Where, owing to the existence of indeterminacy, the process of reasoning is likely to be excessively protracted and the reasons provided strongly contestable, the most cost-efficient and impartial decision-making strategy may well be recourse to lot. Aversion to this strategy, while generally understandable, is not necessarily rational. Yet in law, reason is generally valued more highly than is rationality. The lottery is often conceived to be a decision-making device that operates in isolation. Yet lotteries can frequently and profitably be incorporated into other decision-frameworks. The book concludes by controversially considering how lotteries might be so incorporated and also advances the thesis that it may sometimes be sensible to require that adjudication takes place in the shadow of a lottery.Less
Chance inevitably plays a role in law but it is not often that we consciously try to import an element of randomness into a legal process. This book explores the potential for the use of lotteries in social, and particularly legal, decision-making contexts. Utilising a variety of disciplines and materials, the book considers in detail the history, advantages, and drawbacks of deciding issues of social significance by lot and argues that the value of the lottery as a legal decision-making device has generally been underestimated. The very fact that there exists widespread resistance to the use of lotteries for legal decision-making purposes betrays a commonly held belief that legal processes are generally more important than are legal outcomes. Where, owing to the existence of indeterminacy, the process of reasoning is likely to be excessively protracted and the reasons provided strongly contestable, the most cost-efficient and impartial decision-making strategy may well be recourse to lot. Aversion to this strategy, while generally understandable, is not necessarily rational. Yet in law, reason is generally valued more highly than is rationality. The lottery is often conceived to be a decision-making device that operates in isolation. Yet lotteries can frequently and profitably be incorporated into other decision-frameworks. The book concludes by controversially considering how lotteries might be so incorporated and also advances the thesis that it may sometimes be sensible to require that adjudication takes place in the shadow of a lottery.
