Network on SSRN: Dimitry Kochenov, "EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?"

We are pleased to welcome to the network Dimitry Kochenov (Groningen), who this year will be a fellow and visiting research scholar in the Law and Public Affairs Program at Princeton.  Dimitry has alerted us to a new piece he has posted on SSRN, entitled "EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?"  This article is forthcoming in the Yearbook of European Law and is also directly relevant to our ongoing discussions on the accession of the EU to the ECHR.  The abstract is below and the full paper can downloaded here.

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This is a critical analysis of the Rule of Law in the EU, concluding that the Union is not driven by the Rule of Law as an institutional ideal. Instead, the Union deploys the “Rule of Law”, viewed to a large extent through the lens of the autonomy of the EU legal order, to shield itself from potential internal and external contestation. This is precisely the contrary to what the classical understanding of the Rule of Law would imply. The Union thus suffers, it is argued, as a result of misrepresenting legality at the EU level, selling it to friendly observers under the label of the “Rule of Law”, while compelling reasons exist to distinguish the two. To do so, Gianluigi Palombella’s vision of the Rule of Law as an institutional ideal is employed, implying that the law – gubernaculum – should always be controlled by other law – jurisdictio – lying outwith the sovereign’s reach. Unable to boast any jurisdictio expressly intended as the legal aspect of positive law beyond the internal market logic programmed into the Treaties, the EU emerges as a somewhat rudimentary legal system, with no strong guarantees of legal non-domination extending beyond the Treaty text. The paper demonstrates the clear negative consequences of the prevalent deficient understanding of the Rule of Law for both constitutional levels: the EU and the Member States. One of the curious outcomes of the current reading of the Rule of Law in the EU is that this principle can be presented as demanding to trump the values of the Treaties as well as of the national constitutions in the name of upholding formal organisational considerations seemingly underpinning the EU legal system, resulting in anarchical confusion.

The Network on SSRN: Richard Peltz-Steele on "Differences in the U.S.-EU Data Protection/Safe Harbor Negotiation"

Network member Richard Peltz-Steele (UMass-Dartmouth) has posted a new piece on SSRN, entitled "The Pond Betwixt: Differences in the U.S.-EU Data Protection/Safe Harbor Negotiation," which recently appeared in the Journal of Internet Law.  The abstract is below and the full article can be found here.

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This article analyzes the differing perspectives that animate US and EU conceptions of privacy in the context of data protection. It begins by briefly reviewing the two continental approaches to data protection and then explains how the two approaches arise in a context of disparate cultural traditions with respect to the role of law in society. In light of those disparities, Underpinning contemporary data protection regulation is the normative value that both US and EU societies place on personal privacy. Both cultures attribute modern privacy to the famous Warren-Brandeis article in 1890, outlining a "right to be let alone." But decades passed before the impact of the article was felt. Both privacy and data protection are today part of the fundamental rights system of Europe, a component of the amalgamated constitution of the European Union. Both are part of the legislative and regulatory state at the national and federal level.

The Network on SSRN: Turkuler Isiksel, "European Exceptionalism and the EU's Accession to the ECHR"

Network member Turkuler Isiksel (Columbia) has a new paper on SSRN, exploring and criticizing the strand of "European exceptionalism" that she identifies in the attitude of the Court, and in Opinion 2/13 in particular.  The abstract is below; the full text, entitled "European Exceptionalism and the EU's Accession to the ECHR," is available on SSRN here.

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In a December 2014 opinion, the Court of Justice of the European Union (CJEU) torpedoed the draft accession agreement that would have enabled the EU to accede to the European Convention on Human Rights (ECHR) on the grounds of its incompatibility with the EU’s constitutional structure. The opinion has been widely criticized as evidence of the CJEU's unwillingness to be bridled by another international court and its anxiety over losing its self-proclaimed primacy within Europe’s juridical space. This short essay argues that the Court's reasoning is symptomatic of an hubristic attitude of "European exceptionalism" that pervades the self-understanding of EU institutions, not least the Court itself. According to the exceptionalist narrative, the enlightened character of EU institutions exempts them from the normative constraints designed to check more imperfect forms of political organization such as nation-states. The paper submits that this is a more alarming, not to mention ironic, stance for a supranational Court to espouse than either institutional self-importance or exaggerated anxiety over constitutional incompatibility.

The Network on SSRN: Noga Morag-Levine, "The History of Precaution"

Network member Noga Morag-Levine (Michigan State) has a new article on SSRN, entitled "The History of Precaution," exploring transatlantic debates over precaution from a legal-historical perspective.  The abstract is below, and the full article can be found here.

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The distinctiveness of European from American regulatory cultures or traditions is a matter of longstanding controversy. Two recent books — The Politics of Precaution by David Vogel — and The Reality of Precaution, edited by Jonathan Wiener with several others — have made notable contributions to this debate. Both books argue that regulatory cultures or traditions are incapable of explaining current differences between American and European approaches to precaution, which they define as regulatory stringency. For Wiener, this conclusion derives from the inconsistency of patterns of stringency between the United States and Europe. Vogel argues that while the stringency of current European environmental regulation indeed exceeds that of its U.S. counterpart, the split is unstable and opened relatively recently. In combination, the books aspire to put to rest an entire family of historical-institutional explanations for cross-national regulatory differences in the transatlantic context and beyond.

This essay draws from legal history to argue for an alternative position: legal traditions and their associated administrative-law principles are highly relevant to current transatlantic conflicts over precaution. The paper’s starting point is the distinction between two separate meanings of the precautionary principle, the first prescriptive, and the second permissive. In its prescriptive sense the precautionary principle urges regulators to take stringent mitigation measures in the face of scientifically uncertain risks. In its permissive sense, the principle authorizes the state to regulate when the relevant harms are scientifically uncertain. Conflicts over permissive precaution thus inherently reflect divergent views of the scope of the state’s autonomy in the regulation of risk. These disparate views correspond closely, in turn, with relevant differences between the administrative law traditions respectively associated with Anglo-American common law and Continental civil law.

The Network on SSRN: Daniel Halberstam, "'It's the Autonomy, Stupid!' A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and a Way Forward"

Network member Daniel Halberstam (Michigan) has a new piece posted on SSRN, entitled "'It's the Autonomy, Stupid!' A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and a Way Forward".  This piece builds on the presentation that Daniel made at the Jean Monnet Center at NYU in January.  It will also soon appear in the German Law Journal and be the subject of a symposium on the Verfassungsblog.  The abstract can be found below and the full article can be downloaded here.

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Opinion 2/13 of the European Court of Justice (striking down the draft agreement on accession to the ECHR) has been widely derided as “unsubstantiated,” purely “self-interested,” and “playground politics.” This Article disagrees with that assessment. The Article provides the first comprehensive legal analysis and reconstruction of the Opinion’s many objections to show why the Court’s concerns are mostly warranted. At the same time, however, the Article explains why accession to the ECHR is not only important for human rights, but also vital to save the European Union itself. Finally, the Article points the way forward, arguing for changes (though not all those the Court demands) that must be, and can be, made to allow accession to proceed.

The Network on SSRN: Neil Walker on Secession Movements and EU Membership

Network member Neil Walker (Edinburgh, visiting this term at Yale) has alerted us to a new piece posted on SSRN entitled "Beyond Secession? Law in the Framing of the National Polity," which is forthcoming in a collective volume on nationalization and globalization from Hart Publishing.  The abstract is below and the full article can be downloaded here.

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This paper examines the legal and political course of contemporary secession struggles within the European Union, with particular reference to the recent Scottish referendum, the 'consultation' in Catalonia, and the developing situation in Flanders. The focus is upon the way in which secession debates have become tied up with the question of the EU membership prospects of the potentially seceding state. The EU institutions themselves have adopted an attitude of 'conservative neutrality' to these prospects and to the legitimacy of secession more generally – a minimalist approach which largely defers to the various and differing domestic constitutional arrangements of the ‘parent’ state and which, at best, does not exclude new membership where secession may be compatible with these domestic arrangements. The paper contrasts the unwillingness of the EU to assume a directorial role in the theatre of European secession – an attitude which has some anomalous consequences but which accurately reflects the EU’s weak legitimacy over such a ‘high political’ question – with its highly significant role in the more elementary matter of stage (re) design. For the very existence and development of the EU as a supranational entity, alters the basic calculus through which we attribute value – both instrumental and expressive – to forms of political life at, above and below the level of the state. And while the full historical consequences of the EU’s reframing exercise remain unsettled and unpredictable, they are already reshaping political expectations and aspirations in ways that alter our very sense of the significance of 'secession' and associated statuses.

The Network on SSRN: Joanna Glowacki and Christoph Henkel on Hydraulic Fracturing in the EU

Network member Christoph Henkel (Mississippi) has posted a new article on SSRN, co-authored with Joanna Glowacki, entitled "Hydraulic Fracturing in the European Union: Leveraging the U.S. Experience in Shale Gas Exploration and Production."  The article is forthcoming in the Indiana International & Comparative Law Review.  The abstract is below and the full article may be downloaded here.

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Hydraulic fracturing has been the subject of much debate recently, both in the United States and increasingly in Europe. Advances in hydraulic fracturing technology have led to a shale gas boom in the United States, significantly lowering natural gas prices, and causing some foreign businesses to move manufacturing plants from Europe to the United States. In the United States, approximately 11,000 new wells are “fracked” each year, adding to the currently existing 35,000 wells. When compared to these numbers, European shale gas exploration remains in its infancy and commercial scale gas extraction has yet to be established. At the same time, many Member States in the European Union consider the exploration of unconventional fossil fuels essential for their energy security and independence from Russian gas.

While natural gas is a cleaner burning fossil fuel than oil, the fracking process itself, as well as its requisite infrastructure, brings with it numerous environmental and health concerns. As shale gas exploration progresses further and is commercially developed, many previously unrecognized and underestimated concerns have become more prevalent. The use of fresh water during the process of fracturing and the potential for pollution of surface and groundwater are only two examples of such concerns. In fact, a clear picture of the types and quantities of chemicals being used as additives in fracking fluids injected into the ground and the risks they may pose for the environment or human health has been lacking. In the United States, under the Safe Drinking Water Act, a permit is required only if diesel fuels are used as additives in fracking fluids. Yet, there is no definite clarity with respect to whether operators are actually using diesel fuels as additives or how much is being used.

With little or no experience in shale gas development, Europe is looking toward the United States as a potential model for its nascent regulatory framework. While there is a patchwork of EU directives that address fracturing, there are specific shortcomings due to the fact that shale gas development has not been pursued in Europe. The European Commission and the European Parliament continue to evaluate the impact of fracturing on the environment and human health, and have already released numerous studies and reports. It is the objective of these initiatives to ensure that the environmental risks arising from shale gas projects and cumulative developments are adequately identified and managed in Europe. In addition, the European Union is attempting to establish a common regulatory approach allowing for a comparable and coherent regulatory environment across the European Union and all its Member States.

This article analyzes the existing regulatory frameworks in the United States and European Union as they relate to hydraulic fracturing of shale gas. It is argued that while the United States’ experience may serve as an example for the European Union, the shale gas boom in the United States has raised a host of environmental and health concerns that need to be addressed. At the same time, the United States may be well advised to consider some of the developments in Europe, where, for example, mutual non-disclosure agreements regarding damages to the environment and human health may not be allowed.

The Network on SSRN: Gráinne de Búrca, International Law Before the Courts: The European Union and the United States Compared

Network member Gráinne de Búrca (NYU Law) has alerted us to a new article she has posted on SSRN, entitled “International Law Before the Courts: the EuropeanUnion and the United States Compared.”  The article is forthcoming from the Virginia Journal ofInternational Law.  The abstract is below and the full article may be downloaded here.

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Against the background of a broadly shared perception of the US and the EU as very different kinds of international actors, and a related assumption that the approaches of the US Supreme Court and the European Court of Justice towards the internalization of international law are also very different, this article takes a systematic look at the approaches of the European Court of Justice and the US Supreme Court to the internalization of international law over the decade 2002-2012. The perception of the US in recent decades has been as a frequently unilateralist and exceptionalist actor in international relations, with the Supreme Court remaining resistant to law which emanates from outside the American legislative process, or which lacks a clear domestic imprimatur as applicable US law. The EU, by comparison, is seen as having a greater commitment to multilateralism and to the development and observance of international law, and the case-law of the Court of Justice has until recently been broadly viewed – with WTO jurisprudence seen as an exception – as actively contributing to shaping that image through its embrace and internalization of international law norms. The analysis over a ten-year period of the case law of the two courts dealing with international law suggests that, rather than a simplified picture of the Supreme Court as the skeptical judicial arm of an internationally exceptionalist United States and the CJEU as the embracing judicial arm of an open and internationalist European Union, there are many more commonalities between the approaches of the two courts than conventional depictions acknowledge.

The Network on SSRN: Philomila Tsoukala on Household Regulation in the Crisis of European Integration

Network member Philomila Tsoukala (Georgetown) has posted a new article on SSRN, entitled “Household Regulation and European Integration: The Family Portrait of a Crisis.”  The article is forthcoming from the American Journal of Comparative Law and can be downloaded in full here.  The abstract is below.

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This article develops a theoretical framework for analyzing the regulation of the household and its effects on the economy. Incorporating insights from family economics, comparative family law, legal realism, political economy and feminism, it describes the array of different legal regimes that can affect household composition and function. The article then analyzes the case of Greece using this framework. It argues that the role of households organized as families was a central element in the Greek debt crisis, overlooked by scholars and policymakers alike. It identifies the host of legal regimes that helped consolidate families as the main providers of both welfare and employment and analyzes the consequences of this organization for Greece’s economy. Finally, the article argues that a household based analysis offers useful comparative insights in the context of the euro crisis and its management. More specifically, it elucidates how the structural reforms now required through the European Semester necessitate a dramatic transformation of basic schemes of welfare provisioning. It argues that without additional support these transformations are likely to fail or have dramatic unintended consequences.

The Network on SSRN: Marketa Trimble, "The Territoriality Referendum"

Network member Marketa Trimble (UNLV) has posted a new piece on SSRN, entitled "The Territoriality Referendum."  The article is forthcoming from the WIPO Journal.  The abstract is below and the full article can be found here.

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Many Internet users have encountered geoblocking tools – tools that prevent users from accessing certain content on the Internet based on the location from which the users are connecting to the Internet. Because at least some users want to access such content, they turn to tools that enable them to evade geoblocking, to appear on the Internet as if they were located in another location, and to access the content that is available in this other location. So far these activities appear to be under the radar of intellectual property (“IP”) owners, perhaps because geoblocking evasion by users for the purposes of accessing IP-protected content can be viewed much like non-infringing de minimis importation in small numbers for non-commercial use (TRIPS, Art. 60).

This article points out that there are signs of substantial user desire to access content that is not available in the user’s location; this desire is evidenced, for example, by the recent proliferation of the numbers of and commercial success of space-shifting services that have advertised and/or have been used to access territorially-restricted television content from any place in the world (e.g., ManekiTV, Slingbox). It is possible that with more territorial restrictions imposed on content on the Internet and with courts finding at least some of the space-shifting services infringing (e.g., TVCatchup, Aereo) users will turn to geoblocking evasion even more than they have already. The article discusses the effects that such increased geoblocking evasion might have on the territoriality of IP rights – or the effects on at least some of the implications of the territoriality.

The Network on SSRN: Erin Delaney on "Judiciary Rising: Constitutional Change in the United Kingdom"

Network member Erin Delaney (Northwestern) has posted a new piece on SSRN, entitled "Judiciary Rising: Constitutional Change in the United Kingdom."  The article is forthcoming from the Northwestern University Law Review.  The abstract is below and the full article may be downloaded here.

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Britain is experiencing a period of dramatic change that challenges centuries-old understandings of British constitutionalism. In the past fifteen years, the British Parliament enacted a quasi-constitutional bill of rights; devolved legislative power to Scotland, Wales, and Northern Ireland; and created a new Supreme Court. British academics debate how each element of this transformation can be best understood: is it consistent with political constitutionalism and historic notions of parliamentary sovereignty, or does it usher in a new regime that places external, rule-of-law-based limits on Parliament? Much of this commentary examines these changes in a piecemeal fashion, failing to account for the systemic factors at play in the British system.

This Article assesses the cumulative force of the many recent constitutional changes, shedding new light on the changing nature of the British constitution. Drawing on the U.S. literature on federalism and judicial power, the Article illuminates the role of human rights and devolution in the growing influence of the U.K. Supreme Court. Whether a rising judiciary will truly challenge British notions of parliamentary sovereignty is as yet unknown, but scholars and politicians should pay close attention to the groundwork being laid.