Templates for Thinking about Religion and Pluralism: New Papers (B. Berger / R.A. Kahn / E.J. Bomhoff & M. Gu)

There's a number of interesting new papers on SSRN that discuss issues related to pluralism and religion. Specifically, each paper deals with a variant of the basic question of what broad 'template' - in terms of conceptual schemes, historical analogies etc. - may be best suited for current thinking about the accomodation of religious difference within constitutional orders.

First, Benjamin Berger (University of Victoria) has published his article 'The Cultural Limits of Legal Tolerance' (Canadian Journal of Law and Jurisprudence 2008). This is the abstract:

This article presents the argument that our understanding of the nature of the relationship between modern constitutionalism and religious difference has suffered with the success of the story of legal tolerance and multiculturalism. Taking up the Canadian case, in which the conventional narrative of legal multiculturalism has such purchase, this piece asks how the interaction of law and religion - and, in particular, the practices of legal tolerance - would look if we sought in earnest to understand law as a component, rather than a curator, of cultural diversity in modern liberal societies. Understanding the law as itself a cultural form forces us to think about the interaction of law and religion as an instance of cross-cultural encounter. Drawing from theoretical accounts of cross-cultural encounter and philosophical literature about the nature of toleration, and paying close attention to the shape of Canadian constitutional doctrine on religious freedom (law's rules of cross-cultural engagement), this paper suggests that legal toleration is far less accommodative and far more assimilative than the conventional narrative lets on. Influential alternative theoretical accounts ultimately reproduce this dynamic because they similarly obscure the role of culture on both sides of the encounter of law and religion. Indeed, owing to the particular features of the culture of law's rule, even the more thickly cultural "solutions" proposed in dialogic theory ultimately fail. In the end, this article exposes the very real cultural limits of legal tolerance.

An analysis of historical 'templates' can be found in Robert A. Kahn's (U St. Thomas School of Law) paper 'Are Muslims the new Catholics? Europe's Headscarf Laws in Comparative Historical Perspective' (U St. Thomas Legal Studies Research Paper 08/26). The abstract:

European opponents of the headscarf often view themselves as engaged in a "struggle against totalitarianism." This paper explores an alternative framing: What if Muslims - rather than Nazis or Communists in training - are the more like nineteenth century Catholics, who were seen as a religious threat to European (and US) liberalism? To explore this idea, my paper looks at the headscarf debate through the lens of the German Kulturkampf (1871-1887) and nineteenth century US laws that banned public school teachers from wearing clerical garb. I reach two tentative conclusions. First, many of the claims made against European Muslims - especially about the "backward" nature of the religion - were also made against Catholics. Second, just as the Kulturkampf (and US clerical garb laws) failed to create a new "modern" Catholic, headscarf laws will not create Islamic moderates. However, the ultimate incorporation of Catholics in the years after 1945 suggest a more hopeful future - one that will come quicker if there is less legal repression.

An empirical study nuancing the Muslims/Catholics parallel, finally, can be found in a new paper by Eduard J. Bomhoff and Mary Gu (both Nottingham Univ. - Malaysia Campus), entitled 'Malaysia's Muslims: The First World Values Survey' (Nottingham Univ. Business School Malaysia Campus Research Paper 08/10). The abstract:

In the Islamic world, Malaysia is a happy outlier: richer and politically more mature than the average of the 58 members of the Organization of the Islamic Conference. That makes it interesting to test theories of modernization for this prosperous Islamic country. In our analysis of the first World Values Survey in Malaysia, we look at questions in the following four areas: 1. Tolerance of abortion, homosexuality, prostitution, divorce, euthanasia and suicide. 2. Acceptance of the ideology of the economic market. 3. Equality between men and women. 4. Esteem for democracy. Responses on such questions show to what extent Malaysia is a "modern" country on the definition of Inglehart . We provide context by comparing the results for Malaysia to currently available WVS data for all other Islamic nations as well as a comparator group of strongly Catholic countries. For the questions on tolerance of abortion etc., we find both in Islamic and in Catholic countries, that more religious people adhere to the traditional views of their religion. For the other three groups of questions, however, the association in most Islamic nations is strikingly different from the pattern in the Catholic countries: many of the strongly religious Muslim respondents exhibit openness to gender equality, and keenness for democracy and the laws of the market which are significantly greater than the average for their nation. We also find that the often-mentioned link between more education and a more "modern" outlook holds for the Catholic countries but is an inappropriate generalization for the Islamic world.

Tridimas and Gutierez-Fons on ECJ Kadi & Al Barakaat

Takis Tridimas and Jose Gutierez-Fons (both Queen Mary, London) have what must surely be the first commentary on the ECJ's important Kadi decision (joined cases C 402/05 and 415/05) of earlier this month (Fordham International Law Journal, forthcoming; now available on SSRN. Hat tip: LegalTheoryBlog).

This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI. In its judgment under appeal, the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI's approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the "emergency constitution" at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU's distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.

Note: The InternationalLawObserver Blog has a very good summary of the Kadi decision.

'Judicial Balancing' and Difference

A small plug, if I may: over the summer, I've published an article on the position of 'judicial balancing' in relation to comparative law methodology in the Hastings International and Comparative Law Review. The paper, entitled 'Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law', is available on SSRN. The paper argues for more attention to the possibility of salient differences among the many manifestations of 'balancing discourse' in decisions of courts from around the world. This was the abstract:

Courts in Europe, North-America and elsewhere frequently use the language of 'balancing' when dealing with fundamental rights cases. In addition, judges and scholars increasingly often rely on the image of balancing, or 'weighing', to draw (self-)portraits of legal cultures and to frame contrasts and similarities between legal orders. This article argues that this form of discourse occupies a particularly problematic position as a topic of comparative constitutional law, and this for two primary reasons.

First, while balancing references, as legal arguments, function primarily to justify the exercise of judicial power in particular - local - settings, their legitimizing force depends to a large extent on explicit and implicit appeals to values that are understood to transcend the local, such as rationality, fairness and reasonableness. The ways in which balancing references voice these appeals, moreover, can be shown to differ between legal systems. These complex ambivalences place balancing squarely in between the two main competing models for comparative legal studies. Second, balancing references, in many of the ways they figure in legal discourse, habitually transcend familiar categories of legal thought, such as doctrine or principle, or traditional conceptual divisions, such as form/substance and legal/political. This means that a number of commonly relied-upon abstractions are not easily available for comparative investigations of this particular topic.

The article argues that these two sets of difficulties in situating balancing in terms of traditional comparative law approaches have contributed to an overemphasis on similarities and a comparative neglect of differences in local manifestations of balancing discourse. Underscoring the suggestion that the very idea of balancing can mean different things in different places, the article claims, will be essential in developing of a richer understanding of the legitimizing force of a type of discourse that has become crucial in fundamental rights adjudication.

(The article is part of an ongoing project, so comments are particularly welcome)

Legrand on Comparative Legal Studies and Authenticity

Pierre Legrand (San Diego, Paris Pantheon-Sorbonne) has posted his overview article 'Comparative Legal Studies and the Matter of Authenticity', dealing with "salient theoretical issues in comparative legal studies" (that's the abstract, I'm afraid) and originally posted in Vol. 1 of the Journal of Comparative Law, on SSRN, as a San Diego Legal Studies Research Paper (No. 08/71). This is the Table of Contents:

I Premises
II Culture, Then
III Selected Aspects of Comparative Orthodoxy (Such as Truth)
IV The Orthodoxy Applied, Recently and Prominently
V Critique (Part One)
VI Critique (Part Two)
VII Working Towards Another ‘Model’

And from the 'Premises':

Engaging in hubristic programmes that engender a hasty and frenetic search for commonalities-which-clearly-must-be-there-since-we-want-them-there, ‘the comparati[st] presumes similarities between different jurisdictions in the very act of searching for them’. Now, the ‘sameness’ across different laws that comparative research postulates is necessarily based on the repression and exclusion of pertinent differences located in the matrix within which any manifestation of posited law is inevitably ensconced.

The condition of the comparatist is primordially being-towards-another-law such that the notion of ‘relation’ must lie at the heart of any comparative endeavour. Now, we know that ‘[relation] secures the difference of things, their singularity’. Only in deferring to the non-identical, to what is the case in advance of any theoretical elaboration, can the claim to justice be redeemed. Coming to the matter of ‘sameness’ as comparatist —and, therefore, as someone who values diversity as a good and who is prepared to affirm it as a good (although not as a good that will always trump other goods)16 — I can only resist the drive towards uniformity by emphasising, explaining, and justifying singularity, that is, by incessantly reiterating the existence of discrepant epistemological reservoirs of ideas which between them allow communities and individuals to recognise the legal-cultural forms inscribed over the long term that resonate with their sense of identity (including spheres of ‘alternative’ law that have deliberately fashioned themselves as legitimate modes of conflict resolution).

Differential thinking is characterised by its thorough immanence to actualised, real, and, therefore, discontinuous experience, such that if difference is denied, it is life and existence themselves that are denied. Differential thinking thus attests to ‘a gnawing sense of unfulfilledness, [an] endemic dissatisfaction with itself’. It is ‘haunted by the suspicion’ that it is never differential enough. Comparative legal studies must be a practice animated by the conviction that any encounter worth the name must assume encountering the other in all of the other’s singularity and recognising this singularity (...).

Chesterman on the Globalization of Legal Education

Simon Chesterman (NYU Law) has posted 'The Globalization of Legal Education' on BePress (Singapore Journal of Legal Studies, forthcoming). This is the abstract:

This article examines the evolution of legal education as it has moved through international, transnational, and now global paradigms. It explores these paradigms by reference to practice, pedagogy, and research. Internationalisation saw the world as an archipelago of jurisdictions, with a small number of lawyers involved in mediating disputes between jurisdictions or determining which jurisdiction applied; transnationalisation saw the world as a patchwork, with greater need for familiarity across jurisdictions and hence a growth in exchanges and collaborations; globalisation is now seeing the world as a web in more ways than one, with lawyers needing to be comfortable in multiple jurisdictions.

Hesselink on Fairness and Social Justice in European Private Law

Martijn Hesselink (University of Amsterdam) has posted 'CFR & Social Justice: A short study for the European Parliament on the values underlying the Draft Common Frame of Reference for European Private Law - What roles for fairness and social justice?' on SSRN (Center for the Study of European Contract Law - CSECL - Working Paper 2008/08). This is the abstract:

The draft Common Frame of Reference is likely to play a prominent role in the further development of European contract law. Therefore, with a view to its acceptability it is crucial to assess the draft from the point of view of social justice.

The DCFR has all the characteristics of a typical European compromise. Ideological and esthetical purists will certainly be disappointed. This is not necessarily something to be worried about. A common frame of reference is not drafted, in the first place (if at all), for esthetical or ideological reasons; it is meant to provide some normative guidance in the further development of European contract law. European citizens have very different interests, preferences and opinions in relation to almost all the subjects dealt with in the DCFR. A DCFR consistently based on only one conception about the right choices would inevitably have disappointed all European citizens with a different idea of social justice in European private law. Therefore, if we really want the further Europeanization of private law we will have to accept that it will probably look rather different from both the particular Member State law that each of us is familiar with and our personal ideas of social justice. The publication of the interim outline edition of the draft CFR, which is the result of a close collaboration between hundreds of legal scholars from all Member States, has brought that message home. The characterisations of the DCFR as 'a law for big business and competent consumers' or, alternatively, as a 'massive reduction of private autonomy' are both unfounded. Overall, from the point of view of social justice, the DCFR is fairly balanced. Nevertheless, there is certainly room for improvement.

Even if the DCFR is going to remain only a soft law instrument it is still likely to have a considerable influence on the further development of private law in Europe and will therefore also affect, directly or indirectly, the lives of all European citizens. For this reason it is crucial that European citizens will not only be the addressees of the CFR, or of the legislative measures based thereon, but can also rightly consider themselves as its authors. After the drafting by legal experts and the rather one-sided 'stakeholders'' input that were both organised by the European Commission it is now time for the citizens' voice. Only a meaningful input from the European and national Parliaments can provide the final CFR with the regulatory legitimacy that it needs.

The level of consumer protection in the DCFR is sufficiently high for it to be acceptable as the content of an optional instrument, which could be made applicable, for example, by clicking on a 'blue button'. However, as an absolute maximum beyond which the Member States would not be allowed to go in the case of full harmonisation, it is submitted, the level of protection in the DCFR is insufficient. Moreover, the DCFR draws a sharp distinction between B2C and B2B contracts. It categorically excludes from the protection that it grants to consumers all businesses, even the smallest ones that may be as vulnerable as consumers (or even more so) when it comes to a lack of information, inexperience and dependence. This sharp distinction deviates from the law in many Member States, is not required by the EC Treaty (which is relevant with a view to the CFR's role as a toolbox for revising the acquis and for drafting new acquis), and is potentially contrary to the fundamental principle of justice that any distinction between groups of people should favour the least privileged.

General private law - the bulk of the model rules contained in the DCFR - cannot be said to be 'neoliberal' as the Social Justice Group feared it would. Nor is it 'socialist' as some business stake holders warned for. It strikes a balance between autonomy and solidarity that is quite similar to the ones drawn in the modern private laws (including the case law, i.e. not merely the civil codes) of the Member States. However, where the DCFR deviates from the Principles of European Contract Law (PECL) it is always in the liberal direction.

Throughout the last Century general clauses, such as good faith, have played a prominent role in promoting social justice in private law in the Member States. In fact they became delegations of law-making power to the courts in order to allow them to find just and fair solutions in new cases. This tradition was codified in the PECL. However, in the DCFR the role of good faith is narrower and deliberately so. From the point of view of social justice it is important that in the final CFR the role of good faith as an undisputed legal basis for judge-made law should be restored.

The catalogue of underlying values and principles, that is meant to become the preamble to the final CFR and is likely to play a crucial role in the interpretation and further development of the CFR, brings back to the foreground some fundamental values that have played a prominent role in private law making in the Member States but that have been overshadowed, on the European level, by the narrow focus on market building. Having said that, the list of values in the DCFR could be framed so as to be more balanced. In particular, the privileged position of party autonomy as the only principle that is also contained in the black-letter model rules seems unjustified.

Clark on the Legal Profession in China

Gerard J. Clark (Suffolk U Law School) has posted 'An Introduction to the Legal Profession in China in the Year 2008' on SSRN (Suffolk University Law Review 2008, p. 833). This is the abstract:

In the last 25 years, prompted by rapid economic growth and the demands of the World Trade Organization, China has had to create a legal system and a legal profession out of whole cloth. The development has been dramatic indeed with 300 new law schools and over 200,000 law students. These students will help: to populate the vast Chinese and international law firms that are springing up in the major cities; to service the demand for legal services from China's growing newly affluent middle class; and, to serve in the courts and the government under the leadership of the Communist Party. But the Party's embrace of the rule of law has been somewhat ambivalent and the Chinese tradition of valuing social harmony make litigation and the assertion of rights a somewhat unwelcome intrusion. The problems of corruption and influence pedaling are far from solved. Modernization runs forward and the Party, the government and the legal profession try to keep pace. This piece is an introductory survey of the profession as it was found during a one semester stint at Tsinghua University in Beijing in the Spring of 2007 as a Fulbright lecturer.

(Note: Clark earlier wrote an introduction to the legal profession in another communist state: Cuba. See 23 Suffolk Transn. L. Rev. 413 (2000))

Provost on 'Judging in Splendid Isolation'

Rene Provost (McGill Law) has posted 'Judging in Splendid Isolation' on SSRN (Am J Comp L 2008, no. 1). This is the abstract:

The article, taking the reception of international law in Canadian law as a case study, argues that the paradigmatic picture of the judicial function has been evolving as a result of the increased reliance on international legal norms by domestic judges. The place given to customary international law and the constitutional process for consenting to the ratification of treaties signal a dual layer of perceived lack of legitimacy on the part of judges. The first relates to the issue of bindingness of international norms on the state, and the concern of judges that they are not in a position to introduce into domestic law legal standards which have not received acceptance by a more representative branch of Government. The second touches on bindingness of international norms in the state, and the desire of judges to protect the integrity of the constitutional balance of power among the executive, legislative and judiciary. Both perceived shortcomings of judicial legitimacy are evolving, however, as reflected in doctrinal and judicial discussions of a 'constitutional dialogue' among the three branches of Government (internal dialogue) as well as a 'transjudicial dialogue' involving judges and other actors belonging to different states (external dialogue). A look at the presumption of conformity of domestic law with international law, the doctrine of legitimate expectations as flowing from treaty ratification, and the usefulness of declarations of incompatibility of national law with binding international obligations highlights a shifting paradigm: judges are moving from a self-conception grounded in splendid isolation to one which projects the judicial function as more proactive and necessarily collaborative.

Eberle on 'The Method and Role of Comparative Law'

Edward J. Eberle (Roger Williams U School of Law), has posted 'The Method and Role of Comparative Law' on SSRN as a working paper. This is the abstract:

In this article, I argue that we must reassess the role and methodology of comparative law so that we can come up with a sound methodological framework to understand better the role of law in different countries as a way of promoting insight and knowledge and, hopefully, a measure of common understanding. My proposal for comparative methodology consists of these steps: Rule 1 consists of acquiring the skills of a comparativist. That skill calls for immersion in the culture under review, linguistic knowledge, and the application of neutral, objective evaluative skills. In Rule 2 we will apply comparative skill to evaluate the external law, consisting of the law as written or stated. Here we must do a close assessment of the similarities and differences of the law of different countries under review. Rule 3 will involve applying the same methodology to the internal law, consisting of the law that lies beneath external law yet has important influences on the formation of law. These can be phenomena like religion, politics, custom, geography or climate. Finally, Rule 4 will involve assembling the results of comparative investigation in order to determine what we can learn from a foreign legal system and how that insight might reflect on our own legal system. I then discuss the mission of comparative law. Here we need to employ comparative law methodology to help shed insight into nonwestern countries, such as emerging powers like China and India, and help solve pressing public policy questions, like antitrust, informational privacy or consumer protection.

Dubinsky on Transnational Litigation and American Exceptionalism

Paul R. Dubinsky (Wayne State) has posted 'Is Transnational Litigation a Distinct Field? The Persistence of Exceptionalism in American Procedural Law' on SSRN (Stanford Journal of International Law, Vol. 11/1 - 2008). This is the abstract:


Sometime in the future, the current period may come to be regarded as a critical stage in the development of transnational law. It may even be seen as a juncture from which the transnational perspective on many fields of law moved from the exotic to the mainstream and even to the pervasive. The current article examines the state of play of transnationalism in one field, civil procedure, and in one legal system, that of the United States. The focus is on the sophistication with which American courts apply U.S. procedural law in adjudicating disputes with a transnational dimension.

Within the community of American scholars of civil procedure and conflict of laws, something approaching a consensus has emerged in this area. These scholars argue that modern litigation with an international component is different in so many ways from wholly domestic litigation as to require a change in both perspective and nomenclature; litigation of transnational disputes needs to be seen as a distinct field, with a set of procedural norms and rules that differ in important respects from those that apply in purely domestic litigation. These arguments are echoed by prominent members of the bar who maintain that, in the future, effective transnational dispute resolution increasingly will require a body of rules (e.g., jurisdictional rules, rules regarding pretrial discovery and evidence) that are autonomous from those that apply in domestic litigation.

The current article calls this consensus into question. It does so by placing the narrow debate about whether transnational litigation is a distinct field into a wider context - the literature on "American exceptionalism," or the extent to which facets of the U.S. legal system are not just different from other legal systems, but much different. Specifically, the article's focus is on exceptionalism in the U.S. approach to procedural law. At the heart of the analysis is an aspect of transnational litigation in U.S. courts that is rarely discussed: American courts approach litigation that is international in scope as if it were merely a minor variation on litigation that is interstate in scope. Courts apply the same doctrines and intellectual frameworks in both kinds of cases and routinely rely on interstate precedents in international cases, and vice versa. By means of a close analysis of case law in three areas - personal jurisdiction, judicial assistance, and pretrial discovery - the current work shows that this tendency to analogize the interstate lawsuit to the transnational one has deep roots in American law and continues to the present day.

What emerges from this analysis of "interstate-international equivalence" is a set of cautions for those who argue that an increasingly distinct transnational approach to procedural law inevitably will continue to develop in the United States as it has elsewhere. Chief among these cautions are the following: (1) not to underestimate the extent to which interstate analogies continue to dominate the way in which U.S. courts approach disputes that are international in scope; (2) not to overlook the extent to which the American legal system, in the past, has made marginal concessions to transnationalism but not fundamental changes; and (3) not to be overly confident about the triumph of transnationalism in American procedural law based on developments in scholarship, law practice, and law reform in other countries, but rather to focus more closely on the intellectual constructs applied and adapted by American courts.


The paper offers stimulating discussions of American legal exceptionalism and interesting analogies for the process of 'Europeanization' of private international law. On the first issue, Dubinsky helpfully links technical debates over procedural law to broader discussions on the impact of globalization on local understandings:

"At stake in the debate about the status of transnational litigation is whether the American legal system is entering a new period of openness to outside influences and, if so, whether or not this is to be applauded. At issue is whether the U.S. approach to adjudication should retain core features that distinguish it from other legal systems: notice pleading, broad and expensive pretrial discovery, a permissive approach toward concurrent jurisdiction and forum shopping, the predominance of multi-factored tests rather than clear rules, the important role assigned to lay persons as jurors, high rates of settlement, unusually high damages awards, the availability or threat of punitive damages, the presumption against awarding attorneys-fees to the prevailing party".

What follows is a - healthy - antidote to common over-enthusastic 'internationalist' readings of the available evidence:

"The chief problem with much of the American literature on transnational civil litigation is that it ignores what American courts are actually doing. For all the strengths of the normative arguments advanced by transnationalists, their descriptive account is flawed. Changes in law practice, legal education, and global business are offered as evidence of the inevitability of major changes in the way that the U.S. legal system relates to the wider world. To be sure, the changes brought on by the latest wave of globalization are real, but as [this article] shows, it is a leap of faith to infer that the American legal system will respond systematically and not incrementally and marginally, as it has in the past".

From a European perspective, the paper raises interesting questions about the character of the realities of the Europeanization of private international law in EU member states. The unprecedented top-down unification of conflict of laws and conflict of jurisdiction rules in Europe (Brussels I & II, Rome I, II and III) has already provoked questions on the reception of these modifications by local courts. A recent comprehensive study on the Brussels I Regulation found that, in particular with regard to choice of court agreements, important divergencies remain between national systems in the application of uniform European rules. In a much more limited 2005 study on jurisdiction over multiple defendants, I came to similar conclusions, the main issue in that area often being a 'national' reading of 'European' rules. Dubinsky's article provides a welcome external perspective on these processes.

Balkin & Levinson on 'Constitutional Crises'

Sanford Levinson (U Texas Law) and Jack Balkin (Yale) have posted 'Constitutional Crises' on SSRN (University of Pennsylvania Law Review 2009, forthcoming). This is the abstract:

In popular discussion, the term "constitutional crisis" is used to describe every kind of conflict, great and small. But we think we can give the idea greater analytical clarity, and in the process, make some important points about constitutional design.

The secret, we shall argue, is to think about crisis not in terms of constitutional disagreement but in terms of constitutional design. Disagreement and conflict are natural features of politics. The goal of constitutions is to manage them within acceptable boundaries. When constitutional design functions properly -- even if people strongly disagree with each other and threaten each other -- there is no crisis. On the other hand, when the system of constitutional design breaks down, either because people abandon it or because it is leading them off of the proverbial cliff, disagreements and threats take on a special urgency that deserves the name of crisis. In this essay we offer a typology of different types of constitution crises based on this insight.

We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. Type One crises arise when political leaders believe that exigencies require public violation of the constitution. Type Two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type Three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests; people take to the streets, armies mobilize, and brute force is used -- or threatened -- in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this central task.

This is a very interesting addition to the growing literature on constitutional design, with obvious potential for application in comparative study. In fact, it could be argued that usefulness in cross-system studies would be a threshold test for the viability of the scheme of 'types' of crises identified by Balkin and Levinson. (There are a few references to Weimar Germany and Former Yugoslavia in the paper, but the bulk of the argument concerns the US).