Will Phelan Wins 2016 Book Prize of the Political Studies Association of Ireland

 We are very pleased to pass on the news that network member Will Phelan (Trinity College Dublin) has been awarded the 2016 Brian Farrell Book Prize by the Political Studies Association of Ireland for the best book published in political science by a PSAI member in 2015. He won the award for In Place of Inter-State Retaliation: The European Union's Rejection of WTO-style Trade Sanctions and Trade Remedies (OUP). Congratulations Will! For those interested, the publisher's blurb is below and more information can be found here.

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Unlike many other trade regimes, the European Union forbids the use of inter-state retaliation to enforce its obligations, and rules out the use of common 'escape' mechanisms such as anti-dumping between the EU member states. How does the EU do without these mechanisms that appear so vital to the political viability of other international trade regimes, including the World Trade Organization? How, therefore, is the European legal order, with the European Court of Justice at its centre, able to be so much more binding and intrusive than the legal obligations of many other trade regimes?

This book puts forward a new explanation of a key part of the European Union's legal system, emphasising its break with the inter-state retaliation mechanisms and how Europe's special form of legal integration is facilitated by intra-industry trade, parliamentary forms of national government, and European welfare states.

It argues first that the EU member states have allowed the enforcement of EU obligations by domestic courts in order to avoid the problems associated with enforcing trade obligations by constant threats of trade retaliation. It argues second that the EU member states have been able to accept such a binding form of dispute settlement and treaty obligation because the policy adjustments required by the European legal order were politically acceptable. High levels of intra-industry trade reduced the severity of the economic adjustments required by the expansion of the European market, and inclusive and authoritative democratic institutions in the member states allowed policy-makers to prioritise a general interest in reliable trading relationships even when policy changes affected significant domestic lobbies. Furthermore, generous national social security arrangements protected national constituents against any adverse consequences arising from the expansion of European law and the intensification of the European market.

The European legal order should therefore be understood as a legalized dispute resolution institution well suited to an international trade and integration regime made up of highly interdependent parliamentary welfare states.

The Quest for EU Reform after Brexit: Changes to the Role and Doctrines of the European Court of Justice

“What if…?” These kinds of questions may now seem pointless in the aftermath of the victory of Leave in the EU Referendum.  Instead we hear ‘What’s done is done’, ‘Leave means Leave’, ‘out is out’, etc., etc., etc.

But one question has always nagged at me ever since David Cameron brought his renegotiation deal back to the UK in February: What if it included a serious commitment to alter the role and doctrines of the European Court of Justice? Would that have tipped the balance toward the Remain side? Would we have been talking instead about a 52-48 victory for Remain? Would serious ECJ reform, both institutionally and doctrinally, have been enough to peel off the likes of Boris Johnson from the Leave camp, harnessing his energies for Remain and reform?

We will never know. But the question is still of interest, if for no other reason than the remaining Member States must now seriously consider a range of EU reforms in order to prevent further contagion of the Brexit virus. As former German Constitutional Court Judge Gertrude Lübbe-Wolff said in an interview on Verfassungsblog, ‘the shock over what has happened, and the fear of further disintegration, might produce an awakening effect. So I try to remain optimistic’. This post is in that spirit.

Broadly speaking, there are two options for EU reform in response to the Leave victory: ‘more Europe’ or ‘less’. Which should it be?

Call for Panels and Papers: 2016 ICON-S Conference in Berlin (June 17-19, 2016)

Network member Gráinne de Búrca (NYU) has written to share with us a call for panels and papers for the 2016 ICON-S Annual Meeting and conference, to be held in Berlin at the Humboldt University on June 17-19, 2016.  The theme for this year's conference will be "Borders, Otherness, and Public Law."  An extract from the call for panels and papers is provided below; the full version can be found here.  Note that proposals are due by February 15, 2016.

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Call for Panels and Papers: "Borders, Otherness, and Public Law"

ICON-S, the International Society of Public Law, invites paper and panel submissions for its 2016 Annual Meeting to be held at the Humboldt University, Berlin, Germany, on June 17-19, 2016.

Frank Emmert Announces a New Article and a New Casebook Edition

Network member Frank Emmert (Indiana) has asked us to announce two new publications. First, his article "The Past, Present, and Future of EU Enlargement," co-authored with Sinisa Petrovic and published in the Fordham International Law Journal, is now available for free download here.  Second, "Cases and Materials on European Union Law," co-authored with network members Roger Goebel (Fordham), Eleanor Fox (NYU), and George Bermann (Columbia), as well as friends of the network Jefferey Atik (Loyola-LA) and Damien Gerard (Louvain), and published by West, is now in its fourth edition. The publishers' blurb is below; a table of contents is available here and further information is available here.  

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Cases and Materials on European Union Law.  This classic casebook presents the governance and judicial structure of the European Union, together with its major substantive law fields of concern to students and practitioners, all as updated by the 2009 Treaty of Lisbon. Part I presents the history, institutional structure, principal Court constitutional doctrines, and its basic legal system. Teachers may choose among the other five parts to tailor their courses to their interests. Part II presents leading Court precedents and legislation intended to achieve the common market, later renamed the internal market. Part III comprehensively covers EU competition law and policy, of great concern to practitioners. The European Union’s external relations and trade policy is the subject of Part IV, while Part V presents the impact of free movement of capital and EU banking regulation, and the Monetary Union. Finally, Part VI presents several key policy areas—the harmonization of employment law, anti-discrimination rules, environmental protection, and civil and commercial litigation rules.

OMT Forum: Alicia Hinarejos on 'Gauweiler' and the legality of the OMT programme

Network member Alicia Hinarejos (Cambridge) has passed on this new contribution to our OMT Forum, which originally appeared on EU Law Analysis and which we are cross-posting here by permission.

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On the 16th of June the Court of Justice delivered its decision in the Gauweiler case, concerning the legality of the Outright Monetary Transactions (OMT) programme of the European Central Bank (ECB). The Court considered the programme compatible with EU law. The decision has important implications for the powers of the ECB, the constitutional framework of the EU’s Economic and Monetary Union, and for the relationship between the Court of Justice of the EU and the referring court, the German Federal Constitutional Court. This was the first time that the German court asked for a preliminary ruling, and it remains to be seen whether the reply given by the Court of Justice will be to the national court’s liking.

Background

The ECB is in charge of conducting monetary policy for the euro area and its role is very narrowly defined in the Treaties. This role, however, has evolved and expanded substantially in recent years, as the ECB has announced or adopted various ‘non-standard’ measures in response to the euro area sovereign debt crisis. The OMT programme is one of these measures: it was announced in September 2012 in a press release and, so far, it has never been used.

The idea is that the ECB will buy government bonds from euro countries in trouble, i.e., when nobody else buys these bonds, or their yield is becoming so high that the Member State will not be able to cover interest payments on newly issued bonds, thus having no more access to credit and risking default. Crucially, the Treaty prohibits the ECB from acquiring government bonds directly (Art 123 TFEU) as this would amount to monetary financing, or becoming a direct lender of last resort to a Member State. Instead, the ECB would buy government bonds in the secondary market—that is, from a party that has bought these bonds first from a Member State—rather than from a Member State directly. While the ECB has already done this before, with the OMT programme there would be an added formal element of conditionality, as the Member State in question would need to obtain financial assistance from the European Stability Mechanism or the EFSF and comply with its conditions (i.e. macroeconomic reforms negotiated between the Member State and the troika: the Commission, the ECB, and the IMF).

The applicants before the German Court argued that the ECB had overstepped its Treaty role by creating a programme that should be viewed as a tool of economic, not monetary, policy; it was also alleged that the programme violated the prohibition of monetary financing. In an exercise of ultra vires jurisdiction, the German Constitutional Court’s preliminary response was to consider the OMT programme illegal under EU law. For the first time ever, the national court then referred the case to the CJEU. In the referring court’s view, the Court of Justice might either declare the OMT scheme contrary to EU law, or provide a more limited interpretation of the programme that is in accordance with the Treaties. The German Court provided certain indications as to what those limits should be, and it went on to state that whether the OMT scheme could eventually be held to violate the constitutional identity of the German Basic Law would depend on the CJEU’s interpretation of the scheme in conformity with EU primary law.

The case was sensitive for various reasons: although not yet used, the mere announcement of the OMT scheme played an important role in getting the euro area out of the acute phase of the crisis, and offers a credible defense against similar future scenarios. A declaration of illegality, or the placing of substantive limits on the programme, could have jeopardised post-crisis recovery. Additionally, the reference was the first ever submitted by the German Constitutional Court, and its tone was quite bold; there was, and is, clear potential for conflict between the two courts, with consequences unknown for EMU. Moreover, the case touches on the nature and legitimacy of the role of the ECB as an independent expert, and on the dichotomy between the original, rule-based conception of EMU and the evolving, more policy-oriented EMU that rose out of the crisis.

OMT Forum: Herwig Hofmann on the CJEU's Response to the BVerfG in 'Gauweiler'

New network member Herwig Hofmann (Luxembourg) has posted a working paper on SSRN entitled 'Gauweiler and OMT: Lessons for EU Public Law and the European Economic and Monetary Union'. Herwig has graciously agreed to post a condensed version of the paper's argument here, as part of a forum on the OMT dispute before both the German Constitutional Court, the Bundesverfassungsgericht (BVerfG), and the Court of Justice of the European Union (CJEU). We hope to have additional contributions to the forum in the coming days.

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Do exceptional situations make exceptionally good or exceptionally bad law? This is an old question often asked anew – especially in the context of the post-2008 economic crises travails of the European Economic and Monetary Union (EMU). The legal disputes which resulted from differing opinions about how to solve the crises and also how, incidentally, to improve the EMU’s governance have reached the Court of Justice of the European Union (CJEU). The most prominent case to date is the so-called Gauweiler case, a preliminary reference procedure initiated by the German Constitutional Court, the Bundesverfassungsgericht (BVerfG). I discuss this case in more fully argued working paper available on SSRN, 'Gauweiler and OMT: Lessons for EU Public Law and the European Economic and Monetary Union'.

Gauweiler concerns the legality of the decision of the Governing Board of the European Central Bank (ECB) of September 2012 on so called ‘Outright Monetary Transactions’ (OMT). This case is significant for legal integration in the EU since, although it is the first instance in which the German BVerfG has ever taken advantage of the preliminary reference procedure (Article 267 TFEU), the reference by the BVerfG was formulated in very terse words. Essentially, the reference asks for clarification about the legality of the ECB’s OMT decision. But that reference is not formulated in terms of a dialogue between Courts, each respecting the other’s distinctive powers. Instead, the BVerfG explains why it considers the ECB’s decision to be ultra vires of its mandate and asks the CJEU essentially to confirm this interpretation warning about potential consequences in its assessment of the ‘constitutional identity’ of the Federal Republic of Germany. Inherent in the reference is a thinly veiled threat not to accept the exclusive competence of the CJEU to review the legality of EU law and, instead, to unilaterally hold an act of an EU institution to be invalid within a Member State of the EU. The BVerfG reinforced its sceptical position of the primacy of EU law over the law of Member States by recalling in its decision for preliminary reference its case-law concerning the limits it perceives are set for the Federal Republic of Germany’s integration in the European Union. In its decision, it refers to and further interprets the scope of its own case-law making reference inter alia to its judgments concerning the Treaty of Maastricht, the Treaty of Lisbon and in Honeywell, as precedent for its questions to the CJEU.

This approach to formulating the preliminary ruling, a legal obligation for any court of a Member State of the EU ‘against whose decisions there is no judicial remedy under national law’ (Article 267 para 3 TFEU) can therefore not be seen as a long overdue normalisation of the relations between the CJEU and the BVerfG. The BVerfG as one of the last remaining constitutional courts of Member States instead of simply complying with its clearly defined obligations under the Treaties to submit in adequate cases questions for preliminary reference. Rather, it is formulated as ‘last warning’ by the BVerfG after which, if the CJEU does not fall in line with its approach, it would consider to radically challenge the constitutional order of the EU and, in effect, questioning the Union’s very existence as a constitutional order.

Europe's Justice Deficit? (Debate at LSE, June 4, 2015)

Network member Gráinne de Búrca (NYU) has sent us the following account, which also appears on EUtopia here, of a debate on Thursday June 4, 2015 at the London School of Economics, between Justice Giuliano Amato of the Constitutional Court of Italy (former Italian Prime Minister) and Professor Christian Joerges (Hertie School of Governance).  The debate marked the publication by Hart Publishing of a new collection of essays on “Europe's Justice Deficit?" (available here), edited by Dimitry Kochenov, Gráinne de Búrca and Andrew Williams.  

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Christian Joerges launched the debate by reflecting on the EU’s origins, and on the strong influence of German ordo-liberal economic theory in the creation and design of the European Economic Community.  He described an ordo-liberal legal framework as one which “privileges and constitutionalizes a private-law society”; and which treats as “just” whatever a system of undistorted competition delivers.  He asked the audience whether the EU’s institutional design and its ordoliberalism-inspired “integration through law” agenda has been an obstacle to the pursuit of justice instead of a means of fostering it.  Citing the various challenges which have been made to this ordo-liberal vision by writers such as Fritz Scharpf, Jürgen Habermas and Wolfgang Streeck, he emphasized the democratic and social embeddedness of markets and their dependence on other institutions for their capacity to deliver justice, and doubted whether the EU in its current form has that capacity.  Moving on to the writings of John Rawls and Thomas Nagel on the scope of justice, and on the difficult question of whether “justice between states,” and particularly any form of redistributive justice, is really possible, he posed the question: “what are the Greeks entitled to expect from the Germans?”  The EU is better understood, he suggested, in terms of “inter-democracy” (to use a term derived from Daniel Innerarity’s work, here) rather than being thought of as itself a democratic system.

On the current crisis, with its politics of austerity and governance-by-troika, Joerges argued that the kind of interventionist European economic and financial management we have seen in recent years is actually far removed from the ordo-liberal vision, in its reliance on discretionary power rather than justiciable rules.  Finishing on an understandably gloomy note, he suggested that while the EU’s crisis management may well destroy southern European economic cultures, the social and institutional resistance of these cultures means that it will nevertheless be unable to replace them with some other top-down model of economic governance.

Conference at LSE: 'Resilience or Resignation? National Parliaments and the EU', 10 April 2015

Friend of the network Davor Jancic (British Academy Newton Fellow, LSE), has asked us to forward the announcement below of the conference Resilience or Resignation? National Parliaments and the EU, which will take place at LSE on April 10.  Included in the speaker line-up is network member Peter Lindseth (UConn, this term Senior Emile Noël Fellow at NYU), as well as Katarzyna Granat (Emile Noël Fellow at NYU).  More details can be found here (including RSVP details) and the full announcement is below.

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Book Announcement: Susan Rose-Ackerman et al., Due Process of Lawmaking: The United States, South Africa, Germany, and the European Union (CUP 2015)

Network member Susan Rose-Ackerman (Yale), together with Stefanie Egidy and James Fowkes, has a new book out from CUP entitled Due Process of Lawmaking: The United States, South Africa, Germany, and the European Union.  The publisher's blurb is below and more information can be found on the CUP site here.

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With nuanced perspective and detailed case studies, Due Process of Lawmaking explores the law of lawmaking in the United States, South Africa, Germany, and the European Union. This comparative work deals broadly with public policymaking in the legislative and executive branches. It frames the inquiry through three principles of legitimacy: democracy, rights, and competence. Drawing on the insights of positive political economy, the authors explicate the ways in which courts uphold these principles in the different systems. Judicial review in the American presidential system suggests lessons for the parliamentary systems in Germany and South Africa, while the experience of parliamentary government yields potential insights into the reform of the American law of lawmaking. Taken together, the national experiences shed light on the special case of the EU. In dialogue with each other, the case studies demonstrate the interplay between constitutional principles and political imperatives under a range of different conditions.

Book Announcement: William Phelan, In Place of Inter-State Retaliation: The European Union's Rejection of WTO-style Trade Sanctions and Trade Remedies (OUP)

Network member William Phelan (Trinity College Dublin) has a new book out from OUP entitled In Place of Inter-State Retaliation: The European Union's Rejection of WTO-style Trade Sanctions and Trade Remedies.  For those interested, there will be a book rountable at the upcoming EUSA Conference in Boston (see the full program here), in which two network members will be providing comments, Daniel Kelemen (Rutgers) and Peter Lindseth (UConn), along with Peter Hall (Harvard), Alexandra Hennessy (Seton Hall), and Jonathan Slapin (Houston).  For those who want to learn more now, the publisher's blurb is below and more information can be found here.

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Unlike many other trade regimes, the European Union forbids the use of inter-state retaliation to enforce its obligations, and rules out the use of common 'escape' mechanisms such as anti-dumping between the EU member states. How does the EU do without these mechanisms that appear so vital to the political viability of other international trade regimes, including the World Trade Organization? How, therefore, is the European legal order, with the European Court of Justice at its centre, able to be so much more binding and intrusive than the legal obligations of many other trade regimes?

This book puts forward a new explanation of a key part of the European Union's legal system, emphasising its break with the inter-state retaliation mechanisms and how Europe's special form of legal integration is facilitated by intra-industry trade, parliamentary forms of national government, and European welfare states.

It argues first that the EU member states have allowed the enforcement of EU obligations by domestic courts in order to avoid the problems associated with enforcing trade obligations by constant threats of trade retaliation. It argues second that the EU member states have been able to accept such a binding form of dispute settlement and treaty obligation because the policy adjustments required by the European legal order were politically acceptable. High levels of intra-industry trade reduced the severity of the economic adjustments required by the expansion of the European market, and inclusive and authoritative democratic institutions in the member states allowed policy-makers to prioritise a general interest in reliable trading relationships even when policy changes affected significant domestic lobbies. Furthermore, generous national social security arrangements protected national constituents against any adverse consequences arising from the expansion of European law and the intensification of the European market.

The European legal order should therefore be understood as a legalized dispute resolution institution well suited to an international trade and integration regime made up of highly interdependent parliamentary welfare states.

The Past, Present, and Future, of EU Enlargement (Frank Emmert and Siniša Petrović)

Network member Frank Emmert (Indiana-McKinney) has let us know about a new article he recently published with Siniša Petrović (Zabreb) entitled “The Past, Present, and Future, of EU Enlargement.”  The article is available from the Fordham International Law Journal and can be downloaded in full here, along with Frank’s other publications.  The first paragraph is below:

From the founding days of the European Coal and Steel Community ("ECSC') in 1952, European integration has been designed as an open access model. At least in principle, every European State has the right to join. And in spite of the somewhat mixed reviews the European Union (EU) has been getting from its citizens over the years, it has shown a remarkable and sustained attractiveness to those not yet among its members. The main reason is, undoubtedly, that the EU has been successful in its primary mission, namely to bring peace and prosperity to a continent that was regularly torn apart by violent conflict ever since historic records exist. At first, only Western Europe was able to benefit but right when the impact of European integration on peace and prosperity in the region was beginning to be taken for granted, the challenge of expanding the mission to all of Europe presented itself. As we all know, the EU has meanwhile grown from 6 Western founding members to 28 current members and now encompasses virtually the entire geographic range of Europe. One additional country managed to sneak in through the backdoor without a formal accession procedure. Only two countries, Norway and Switzerland, have ever decided against accession, and only one territory, Greenland, has ever decided to leave the EU. No fewer than eight more countries are right now at various stages of accession preparation, and several more may yet decide to apply.  Thus, enlargement is an ongoing story and the map of the EU will still be re-drawn several more times before its final borders can be determined. At the same time, the procedure for accession negotiations is regulated only in very superficial terms, which have remained largely unchanged over time. Yet, the procedure has evolved considerably in practice. As always, when the law on a particular question provides only a basic framework, the discretionary powers of those who apply the law greatly increase. The Council and the Commission have not shied away from making use of those discretionary powers. It is the purpose of the present article to show how individual Member States, or rather individual leaders of those Member States, via the unanimity requirement in the Council, were able to impose their views on enlargement in the early years. Secondly, we will show that this power has shifted noticeably to the Commission as the number of Member States has grown. Nevertheless, strong individual leaders in the Member States can still put their mark on the timetable and conditions of enlargement. There just seem to be fewer of those distinguished leaders today. Thirdly, we try to predict the use of discretionary powers in ongoing and future accession negotiations. To that end, we analyze how accession negotiations were conducted with the Central and Eastern European Countries ("CEECs") which joined in 2004 and 2007, how and why the approach was modified for the negotiations with Croatia, and how and why the strategy is already different again for the next group of countries. 

Peter Lindseth: Equilibrium, Demoi-cracy and Delegation in the Crisis of European Integration (Corrected Version)

Network member Peter Lindseth (UConn Law School) has a new article out in the German Law Journal entitled "Equilibrium, Demoi-cracy and Delegation in the Crisis of European Integration".  The abstract is below.  A corrected version has been posted to fix errors inadvertently introduced by the editors without the author's approval.  The corrected version can be downloaded on SSRN here or the GLJ site here.

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As my work has argued previously, European integration enjoys an “administrative, not constitutional” legitimacy. This view is in obvious tension with the deeply-rooted conceptual framework—what we might call the “constitutional, not international” perspective—that has dominated the public-law scholarship of European integration over many decades. Although the alternative presented in my work breaks from that traditional perspective, we should not view it as an all-or-nothing rejection of everything that has come before it. The administrative alternative can be seen, rather, as providing legal-historical micro-foundations for certain theories that also emerged out of the traditional perspective even as they too are in tension with it. I am referring in particular to Joseph Weiler’s classic notion of European “equilibrium”—now updated as “constitutional tolerance”—as well as Kalypso Nicolaïdis’s more recently developed theory of European “demoi-cracy” on which this article focuses in particular. The central idea behind the “administrative, not constitutional” interpretation—the historical-constructivist principal-agent framework rooted in delegation, as well as the balance demanded between supranational regulatory power and national democratic and constitutional legitimacy—directly complements both theories. The administrative alternative suggests how the relationship between national principals and supranational agents is one of “mediated legitimacy” rather than direct control. It has its origins in the evolution of administrative governance in relation to representative government over the course of the twentieth century (indeed before). By drawing on the normative lessons of that history—notably the need for some form of national oversight as well as enforcement of outer constraints on supranational delegation in order to preserve national democratic and constitutional legitimacy in a recognizable sense—this article serves an additional purpose. It suggests how theories of European equilibrium and demoi-cracy might be translated into concrete legal proposals for a more sustainable form of integration over time—a pressing challenge in the context of the continuing crisis of European integration.

EU Law Stories Conference (March 13 at AU-WCL): Comparative and Contextual Histories of European Jurisprudence

We wanted to alert readers to the "EU Law Stories" conference hosted by our friends at American University Washington College of Law in DC, which will take place on Thursday, March 13.  It may be of interest to those of us also attending the CES conference, which begins the following day. An overview of the program is immediately below, including links to network members who are taking part.  Further information, including registration details, can be found here.

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Thursday, March 13, 2014

8:30 am – 6:00 pm

American University Washington College of Law, 6th floor lounge

4801 Massachusetts Avenue, NW, Washington, DC 20016

The conference will engage lawyers, historians, and social scientists in an interdisciplinary analysis of the important, engaging, or enigmatic EU law cases in order to develop ‘thick’ descriptions of them, more accurate contextual histories, engagement with the leading personalities involved, and critical perspectives in European integration. This will go beyond the standard ‘text book’ analyses of these cases and ‘fold’ the political science and developing historical research in together with the broader legal framework. The aim is to bring together scholars from different disciplinary backgrounds into an open and productive conversation and publish the fruits of this as a volume with a leading press that we think it is timely to influence both the scholarly debates on EU law as well as its teaching.

Call for Papers (Deadline March 15, 2014): New Directions in EU and Global Risk Regulation: Regulatory Autonomy, Evidence-based Policymaking and International Regulatory Co-operation

We are pleased to pass on the call for papers from network member Alberto Alemanno (HEC) for the 10th International Workshop for Young Scholars (WISH) at HEC Paris in December 2014 (date to be determined). The topic is ‘New Directions in EU and Global Risk Regulation: Regulatory Autonomy, Evidence-based Policymaking and International Regulatory Co-operation’. The Workshop offers outstanding young scholars an opportunity to present their best research work in a professional academic setting to an audience of other young scholars and more senior academics. The announcement along with information about the abstract submission procedure is below and can be downloaded in PDF form here.

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The European Law Journal, HEC Paris and the Center for Research on Transnational Law (CTL), Peking University School of Transnational Law (PKUSTL), Peking University Shenzhen Graduate School, are welcoming proposals for presentation at the 10th International Workshop for Young Scholars (WISH)/10ème Rencontre Internationale des Jeunes Chercheurs (RIJC).

The 10th WISH builds on the success of the previous WISH held annually since 2002. It offers outstanding young scholars an opportunity to present their best research work in a professional academic setting to an audience of other young scholars and more senior academics. Selected revised versions of the papers may be published in a special issue of the European Law Journal or in a bilingual edited book (Bruylant, Brussels) destined for an international readership.

CFP (deadline Oct 1, 2013): Nudging in Europe: What can EU Law learn from Behavioural Sciences?

Friend of the network Alberto Alemanno (HEC-Paris), via the Comparative Administrative Law listserv at Yale Law School, has passed on the call for papers below, which we thought might be of interest to other network members.

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OVERVIEW: A growing body of evidence suggests that insights from the behavioural sciences - from psychology and behavioural economics to neurosciences - can help design public policies that work better, cost less, and help people to achieve their goals. By showing that individuals deviate in predictable ways from neoclassical assumptions of rationality, behavioural sciences may help policy makers and administrative agencies to design policies that accommodate how people really behave, not how they are assumed to behave.

Under both UK Prime Minister Cameron and US President Obama, policy makers have recently been encouraged to draw on behavioural and social sciences insights in the design or implementation of new regulations. In the UK, through a process of rapid, iterative experimentation ("Test, Learn, Adapt"), the Behavioural Insights Team has successfully identified and tested interventions that will further advance priorities of the British government, while saving the government at least £1 billion within the next five years. The US federal government has also been experimenting with the idea and is currently creating a new team that will help build federal capacity to experiment with these approaches and scale behavioural interventions that have been rigorously evaluated, using, where possible, randomized controlled trials.

Although the results of the first nudging experiments are mixed, there seems to be an emerging consensus around the idea that regulation cannot work effectively or efficiently if regulators do not consider how targeted people respond.

However, besides a few isolated initiatives displaying some behavioural consideration (e.g. revision of the tobacco products directive, consumer information regulation, behavioural advertising, behavioural remedies in competition law), the European Union has not yet shown a commitment to integrate behavioural research into its policy-making. Given the potential of this regulatory approach in attaining effective, low-cost and choice-preserving policies, such a stance seems inadequate when measured against the EU's commitment to smart regulation in the Europe 2020 Strategy.

Against this backdrop, our workshop aims to: (i) map the actual and possible uses of behavioural insights in EU policy making; (ii) explore what roles - if any - behavioural sciences may play in EU law; and (iii) discuss how they could be better integrated into EU law-making.

"What is Political Union?" (Alexander Somek) in the German Law Journal Special Issue: Regeneration Europe

The German Law Journal, edited by network members Russell Miller (W&L) and Peer Zumbansen (Osgoode), has put out a special issue on the topic "Regeneration Europe."  It includes a contribution by network member Alexander Somek (Iowa) entitled "What is Political Union?"  The abstract is below and the full article can be downloaded here.

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Recent proposals to fix Europe’s ailing monetary union have led some to endorse a stronger fiscal union. Such a fiscal union, which would supposedly comprise stronger budgetary supervision as well as a modicum of revenue collection by the Union itself, is taken to mark the step towards “political” union. The article explores the question of what, if anything, is understood by “political” in this context. After distinguishing three possible meanings of political union, the article argues that a true union of this kind would rest its focus on the form of life that can be sustained among Europeans. Surprisingly perhaps, the article concludes that less centralization and unwinding monetary union in its current form may well be more congenial to a political union than hectic bids for fiscal centralization.

The Copenhagen Project on the History of EU Law (Morten Rasmussen)

Friend of the network Morten Rasmussen (Copenhagen) has passed on the note below outlining his new project "Towards a New History Of European Public Law," funded by FKK-the Agency for Science, Technology, and Innovation of the Danish Ministry of Science, Innovation, and Higher Education.  Morten has assembled an outstanding group of experienced and younger project members, including associated members Anne Boerger (Alberta) and Bill Davies (American) who are also members of our network.  In addition, the projects's external advisory board includes, along with Davies, network members Karen Alter (Northwestern) and Peter Lindseth (UConn).

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In January 2013 a new collective project on the history of European law was launched by University of Copenhagen, Denmark under the leadership of Morten Rasmussen. It brings together historians of EU public law and launches a new agenda for future historical research. The project explores in particular the consequences of the ‘constitutional practise’ launched by the European Court of Justice in Van Gend en Loos and Costa v. E.N.E.L. in 1963 and 1964. How could a set of international treaties, the Treaties of Rome (1957) albeit of a somewhat unusual nature, lead to the establishment of a ‘constitutional practise’? What effects did the ‘constitutional practise’ have on the nature of the European legal order in terms of enforcement and efficiency? And to what extent did national governments and legal elites in the member states accept this development? These are some of the questions explored in the next three years by the project.

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Additional details can be found on the project website here, and earlier posts relating to the project can be found here, here, and here.