segunda-feira, 15 de setembro de 2014

Article: The Swiss Vote Against Mass Immigration and International Law: A Preliminary Assessment

Graduate Institute of International and Development Studies (HEI)

April 19, 2014

Migration Policy Practice, 2014, Vol. IV, Number 1, pp. 12-16 

Abstract:
The purpose of this article is to identify which treaties are in contradiction with the new article 121a of the Swiss Constitution. Though this survey is not exhaustive, no fewer than 58 treaties appear to be incompatible with immigration quotas. While covering various fields of international law and relations, these treaties mainly concern three key areas: headquarter agreements concluded with international organizations; conventions governing refugee protection and treaties on the free movement of persons concluded with the European Union and the European Free Trade Association. The article further identifies for each type of treaties the different options available to Switzerland.

Number of Pages in PDF File: 5

Disponível em: <http://ssrn.com/abstract=2426824>. Acesso em 18 jun. 2014.


sexta-feira, 12 de setembro de 2014

Article: Law, Legal Systems, and Legal Families

Ritsumeikan University - College of International Relations

April 16, 2014

Abstract:
As mentioned by Confucius that ‘Past assists to understand the future’; the concepts of legal systems, and legal families also help us to understand the past, recognize the present, and appreciate the future. Legal families and legal systems are not identical, but are closely interconnected. Law can be described as any standard that is legitimate, valid and enforceable. However, each country might have hundreds, perhaps thousands, of laws. Each law treats one or some specific issues different from other laws. Despite the diversity among laws in terms of contents and treatment, a legal system integrates all laws within its jurisdiction with the help of certain governing principles and rules commonly spread out in all such laws. Similarly, the diversity among laws of different countries is extremely insurmountable in providing an accurate account. For example, after the establishment of the United Nations (UN), more than 180,000 treaties have been concluded, which in a strict sense do not constitute the segment of domestic laws. The idea of legal tradition reduces these insurmountable domestic legal systems into certain groups or families based on their commonalities in terms of legal concepts, in particular the system of legitimacy, validity, and enforceability. In short, a legal system integrates all laws in existence within its jurisdiction. A legal family provides membership to legal systems based on commonalities of principles, rules, and institutions.

Number of Pages in PDF File: 30

Disponível em: <http://ssrn.com/abstract=2425472>. Acesso em 18 jun. 2014.


quarta-feira, 10 de setembro de 2014

Article: What is the Rule of Law and Why is It so Important?

University of Baltimore - School of Law

June 2, 2014

Silkenat, Barenboim and Hickey, eds., "The Legal Doctrines of the Rule of Law and the Legal State" (Springer, 2014 Forthcoming) 

Abstract:
These reflections on the rule of law consider the rule of law from within the rule of law tradition. This discussion clarifies: (1) what the rule of law is; (2) what the rule of law requires of us; (3) where the rule of law comes from; (4) why it is so valuable; and (5) how we can secure it. Let there be no confusion about the subject matter of this inquiry. The rule of law in its original, best, and most useful sense signifies the "imperium legum" of the ancients, "the empire of laws and not of men" pursued by the early humanists, by the partisans of liberal Enlightenment, and republican revolutions across the globe. This is not the later, positivist, more limited understanding of the rule of law as "Rechtsstaat," which has sapped the rule of law everywhere and caused so much confusion. The rule of law in its original and most natural sense is a pure social good, in which the legalism of the Rechtsstaat plays only a partial and supporting role. Societies that enjoy the rule of law are vastly better situated than those that do not. This makes the real rule of law (or its absence) the central measure dividing good from bad government everywhere. All law and political institutions can and should be evaluated to determine whether it or they advance the rule of law -- or do not.

Number of Pages in PDF File: 17

Disponível em: <http://ssrn.com/abstract=2445057>. Acesso em 18 jun. 2014.


segunda-feira, 8 de setembro de 2014

Article: Proportionality and the Rule of Law: Rights, Justification, Reasoning

University of Western Ontario - Faculty of Law

University of Western Ontario - Faculty of Law; James Madison Program in American Ideals and Institutions, Princeton University

London School of Economics - Law Department

April 21, 2014

PROPORTIONALITY AND THE RULE OF LAW: RIGHTS, JUSTIFICATION, REASONING, Grant Huscroft, Bradley W. Miller, and Grégoire Webber, eds., Cambridge University Press, 2014 

Abstract:

Proportionality has been received into the constitutional doctrine of courts in Continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights.

Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists – proponents and critics of proportionality – to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.

This is the Introduction to Proportionality and the Rule of Law: Rights, Justification, Reasoning, published by Cambridge University Press in April, 2014. In addition to the Introduction, this paper includes a list of contributors and a table of contents.

Number of Pages in PDF File: 27

Disponível em: <http://ssrn.com/abstract=2434091>. Acesso em 3 jun. 2014.


sexta-feira, 5 de setembro de 2014

Article: Soft Law

University of California, Berkeley - School of Law

University of Georgia School of Law

May 16, 2014

The Research Handbook on the Economics of Public International Law (E. Kontorovich ed.) (Elgar Publishing, 2014). 

Abstract:

In this chapter, for the Research Handbook on the Economics of Public International Law, we summarize the existing literature on international soft law. We then extend the insights developed therein to explain why states use international legislative institutions — intergovernmental bodies such as the UN General Assembly or the Conferences of the Parties to a number of multilateral treaties — to develop soft law rules. We contend that international legislative institutions do the bulk of their work in the form of soft law and argue that the move toward legislative soft law in international affairs reflects an effort to enhance international law’s effectiveness by weakening the status quo bias inherent in hard law rules to which each state bound must consent.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2437956>. Acesso em 3 jun. 2014.


quarta-feira, 3 de setembro de 2014

Article: Transitional Justice as Genocide Prevention: From a Culture of Impunity to a Culture of Accountability

Yale University - Law School

2014

CONFRONTING GENOCIDE IN RWANDA: DEHUMANIZATION, DENIAL, AND STRATEGIES FOR PREVENTION, pp.363-78 (Jean-Damascène Gasanabo, David J. Simon & Margee M. Ensign, eds. 2014) 

Abstract:

The 1994 genocide against the Tutsi in Rwanda was the latest — and the most widespread, systematic, destructive, and gruesome — in a series of atrocities that the country had faced over the prior half-century. In light of the culture of impunity that had developed in Rwanda throughout previous decades and that contributed to the genocide in 1994, this chapter surveys the major “transitional justice” initiatives implemented over the last nineteen years. This chapter argues that such mechanisms have played a role in preventing future genocides in Rwanda — and, to some extent, elsewhere — by fostering a culture of accountability.

Number of Pages in PDF File: 16

Disponível em: <http://ssrn.com/abstract=2428768>. Acesso em 3 jun. 2014.


segunda-feira, 1 de setembro de 2014

Article: Financial Regulation and Cost-Benefit Analysis: A Comment

Harvard Law School

April 25, 2014


Abstract:

Many regulators have concluded that cost-benefit analysis is the best available method for capturing the welfare effects of regulations. It is therefore understandable that in recent years, some people have been interested in requiring financial regulators to engage in careful cost-benefit analysis of their regulations, and to proceed only if the benefits justify the costs. Ideas of this sort have played a significant role in judicial review of agency action, especially in cases involving the Securities and Exchange Commission. But it is important to distinguish the question whether courts should require cost-benefit analyses, and review them for arbitrariness, from the separate question whether financial regulators should produce such analyses. It is also important to understand that in some cases, cost-benefit analysis presents serious challenges for financial regulators. When agencies lack relevant information, and cannot project benefits (or costs), they can invoke established techniques to discipline the question whether and how to proceed. In particular, breakeven analysis plays a valuable role. Of course it remains possible that in rare cases, agencies have so little information that they cannot even use breakeven analysis. In such cases, it is not helpful to refer to the precautionary principle or to “expert judgment.” In such rare cases, the best that agencies may be able to do is to rely on some version of maximin, while also seeking to fill informational gaps over time.

Number of Pages in PDF File: 14

Disponível em: <http://ssrn.com/abstract=2429340>. Acesso em 3 jun. 2014.