Alors c'est Non (à quoi, exactement?)

Well, so they voted you-know-what you-know-where. I don't have a fixed opinion about everything yet, but have to say I do feel a bit sad. Someone who does have an (interesting) opinion on the Referendum and its aftermath is Timothy Garton Ash in the Guardian. See also that newspaper's extensive Review of Editorials in various (English language) newspapers. Read what Chirac himself had to say to les français et les françaises here and the joint reaction of the Presidents of the European Parliament, Commission and Council here.

Keeping Up-To-Date with Journals: New Links

There's a huge number of people on the net doing some very useful things for comparative law fans. That's my (increasingly humble) feeling after a few days of looking around for links to put in ComparativeLawBlog's sidebar. For example, the good folks at BLAWG are making an impressive effort to track the contents-lists of all US Law Reviews, telling us not only who's got what by whom, but also who's running late and why. Their site has links to two valuable sources provided by the Library of the University of Texas, that give overviews of the contents of a large number of Law Reviews in the US, and Law Reviews from outside the US. On the European side of the Atlantic, the Library of the European Court of Justice publishes a bi-monthly overview of all current literature on European Law. Permanent links have been added below.

More Blogs!

I found some more relevant and fun blogs on the net, links to which have been added to the sidebar. First there's Opinio Juris, dedicated to "reports, commentary, and debate on current developments and scholarship in the fields of international law and politics". A second Blog I can recommend enthusiastically (for one: because not only dedicated to, but also set-up from a comparative perspective) is the aptly called Transatlantic Assembly. Here you should find materials on "European and American Constitutional Law (with an eye to the European Constitution), International Law, European Law, Law and Philosophy", posted by European and American academics and practitioners. Finally, you could have a look at the Weblog maintained by the American Constitution Society for Law and Policy (ACS) for information and comments on American constitutional affairs. Happy blogging!

Bruce Ackerman on Judicial Appointments in the US Senate

The US Senate is in turmoil over judicial appointments. If you have some time to spare, Robert A. Caro's Master of the Senate is probably the best book around on the workings of the American Upper House (albeit primarily in the 50's and 60's) and of a minority's blocking power in that body (then: the Democrats on racial equality). For a quicker introduction to the background of current issues, have a look at this short article by professor Bruce Ackerman of Yale Law School.

EU Law Web Log

I came across this interesting Blog on EU law over the weekend; worth having a look! Fun especially is EU Law Web Log's comparative take on European law, with postings on the two recent important US Supreme Court decisions in Granholm (see also below) and Pasquantino. A link has been added to the sidebar.

Comparative Legal Institutions and Economic Development

The April 2005 issue of the Michigan Journal of International Law contains a series of papers within the broad topic of Globalization, Law and Development, based on a 2004 conference in Michigan. The Introduction by Michael Barr and Reuven Avi-Yonah is available as a University of Michigan Legal Working Paper and provides a concise overview of the various contributions.

I'd recommend these papers for the way they nuance and supplement more traditional neo-institutional law and economics approaches to the role of a 'rule of law' variable in comparative economic development (generally focusing heavily on protecting property rights and establishing an effective judicial system). So, for example, a paper by professor Michael Trebilcock and colleagues places special emphasis on the social, cultural, historical and political contexts in which law reform is supposed to take place. The authors argue that these settings make durable reform exceedingly difficult and offer suggestions on how to make such reform more effective. While their critical analysis admits at least a potential usefulness of the law and development approach, professor David Kennedy takes a more radical external perspective, argueing that "rhetoric that focuses on the importance of legal factors in development (...) frequently serves as a way of avoiding discussion of the political and distributive choices attending the development proces by linking it to a supposedly 'neutral' rule of law paradigm". Curious to see what kind of a response that'll get!!

"Globalization, Law & Development: Introduction and Overview"
Michael S. Bar and Reuven S. Avi-Yonah, University of Michigan
Document: Available from Bepress
http://law.bepress.com/umichlwps/olin/art47

Granholm v. Heald (USSC 16 May 2005)

The US Supreme Court's decision in Granholm v. Heald, striking down State laws banning direct wine sales by out-of-state wineries, has received a lot of media attention. Just a few brief ideas and questions.

A first issue is the highly unusual make-up of majority and minority factions (Breyer and Scalia versus Chief Justice Rehnquist, for example), mentioned also by the Linda Greenhouse for the New York Times. As far as I can see, the case presented a congruence between flexible constitutional interpretation, limitations on States' rights and emphasis on free-market principles (favoured by the majority) versus textualism, full recognition of States' rights and economic protectionalism (chosen by the dissenters). Such an alignment cannot be all that rare, can it?

The Commerce Clause analysis itself - most interesting from a comparative (EU) perspective - seems not to have brought any innovations. The Michigan law at issue simply banned all direct sales by out-of-state wineries and so was patently discriminatory. The New York law required out-of-state wineries to establish a physical presence within the State of New York, which would obviously drive up their costs. This reasoning is not new in the US context and seems very similar to the ECJ's decision in Heimdienst (C254/98) of 2000. In Heimdienst, the European Court of Justice rejected an Austrian law that required door-to-door sellers of groceries to have an establishment within the disctrict they were selling in, or in an adjacent district.

The whole point for the minority in Granholm, however, was that the discriminatory nature of these measures was not a judicial concern because of the status of alcoholic products as "a special category" (per Justice Stevens), established by the 18th and 21st Amendments. There is some interesting rhetoric here on issues of "law and policy". Justice Stevens acknowledges that the Court's decision may represent "sound economic policy" and could be consistent with the policies of the Founding Fathers (not, however, with those of the generation framing the 18th and 21st Amendments). And Justice Thomas in his dissent, speaks of "policy choices" that had been taken away from the courts with the 21st Amendment.

Cycles in Constitutional Theory

A reference to a paper advocating 'humility' in constitutional theory scholarship might be a good start for a new Blog with the ambitious sounding aim of covering the field of 'comparative law and judicial decision making'. Professor Barry Friedman of NYU's School of Law has written a fascinating NYU Public Law and Legal Theory Working Paper on The Cycles of Constitutional Theory (notified through Bepress in April 2005 - paper dates from last year). The author asks whether the fact that "theoretical arguments tend to cycle as the ideological composition of institution changes" is an obstacle to full 'theory' status of constitutional scholarship. The dilemma confronting scholars is that shifting arguments look too much like advocacy, while consistency threatens irrelevance. Once aware of this problem, however, scholars can moderate its negative impact by demonstrating humility, "both about the empirical basis of their claims, and about what the future might bring".

Of particular interest to European readers is professor Friedman's concise exposition of the main developments in American constitutional thought over the past century. Books well known in Europe, such as Ely's Democracy and Distrust and Ackerman's We The People, are placed in ideological and broader political contexts that are perhaps not that easily ascertainable to foreign readers (they weren't to me, anyway).

One amusing point about the paper is the way it seems to prove its own argument rather well. Discussing cycles on the conservative/liberal axis, Professor Friedman argues that we are witnesses of a special historical moment because "for perhaps the first time in U.S. constitutional history, the cycle has come full circle in a poignant way". He adds "we have come full circle: the early 2000s are the early 1900s all over again, and one might as well forget that the Warren Court happened in the middle". Apparently, then, not only are works on constitutional theory influenced by their ideological settings, which they should be careful not to presume fixed (Friedman's point), but work on cycles in constitutional theory seems to be inspired (and influenced?) by, well, cycles.

"The Cycles of Constitutional Theory"
Barry Friedman, New York University School of Law
Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=678361

Welcome to ComparativeLawBlog

ComparativeLawBlog will cover developments in the broad field of comparative law, with special emphasis on comparative theories and methods of judicial decisionmaking. Postings should include cases, working papers and other materials. I'm curious to see how this works out, so do send in your comments or links. Regards, Jacco