Challenging EU constitutional law: The Italian Constitutional Court's new stance on direct effect and the preliminary reference procedure

This article seeks to examine the relationship between EU law and the Italian legal order in light of the recent Italian Constitutional Court (ICC)’s jurisprudence attempting to redefine EU core principles. When fundamental rights are at stake, three assumptions are challenged: the determination of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the disapplication of conflicting national law; judges have the discretion to refer preliminary references to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search for a balance between sovereignty and supranationality is undermined by the ICC's new resistance to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is the result of an unjustified ‘argumentative self‐restraint’ of the ECJ vis‐à‐vis the evolution of EU foundational principles.     

Socio‐legal Studies in Aotearoa/New Zealand

This article reviews the development and impact of the socio‐legal field in New Zealand. It begins by assessing the socio‐legal presence within teaching and research conducted across New Zealand's law faculties before analysing factors likely to inhibit future growth of the sub‐discipline in this remote jurisdiction. Having examined how New Zealand's legal scholars map and influence national legal behaviour, without always recognizing contradictions between these objectives or categorizing their research as ‘socio‐legal’, the article goes on to examine how the next generation of socio‐legal researchers might exert stronger influence over the law curriculum and new areas of legal policy. In conclusion, it argues for a distinctive New Zealand approach toward socio‐legal studies and notes that future prospects appear encouraging, and in certain respects more promising than those in the United Kingdom, particularly when considering research impact.     

A Fresh Look at Stock Market Short‐termism

In this article, we develop a novel understanding of stock market short‐termism as a social phenomenon. Contrary to formerly popular academic belief, short‐termism is a problem that is highly unlikely to be structurally self‐correcting. An important driver of short‐termism typically elided within standard legal‐academic analyses is the informational centricity of modern stock markets, and resulting pressure on corporate managers to generate fresh ‘news’ indicative of perceived business ‘progress’. We highlight the growing enthusiasm of policy‐makers for a discriminatory ‘two‐tiered’ approach to public company investor relations. Accordingly, long‐term and committed investors are expected to be brought into the company's governance ‘inner circle’, while other investors are implicitly relegated to lowertier ‘outsider’ status. We argue that this supports a discriminatory approach to the allocation of voting entitlements in newly listing companies, enabling committed investors to develop cooperative and sustained governance relations with management unencumbered by ‘outside’ stock market pressures for short‐term financial‐performance outcomes.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

Of ‘Landmark’ or ‘Leading’ Cases: Salomon's Challenge

This article seeks to question the two dominant conceptions of ‘landmark’ or ‘leading’ cases in English legal scholarship, using the House of Lords decision in Salomon v. Salomon Co Ltd. – the most famous case in corporate law – as a case study. It argues that neither the first dominant conception of ‘leading’ or ‘landmark’ cases, characterized by the analysis of the intrinsic merits of a case, nor the second, which looks at the historical contexts in which cases were decided, appears sufficient by itself to determine whether a case is landmark or canonical. Rather, we have to look at how the canonicity of a case is constructed by subsequent courts. The article seeks to advance the debate concerning the formation of landmark cases and aims to challenge certain prevailing views on the canonicity of corporate law's arguably most significant case.     

THE SELF‐REPRESENTED LITIGANT: IMPLICATIONS FOR THE BENCH AND BAR

It is widely accepted that the number of self‐represented litigants has skyrocketed nationwide, especially in family law cases. Although nationwide comprehensive data on the number of self‐represented litigants do not exist, anecdotal evidence supports the belief that self‐representation is increasing. The challenge for courts and the entire legal profession is how to respond. Most observers in Indiana would agree that the traditional model of family law litigation—both spouses represented by lawyers settling their disputes before a judge—is no longer the norm in family law cases. Judges face a dilemma: assisting a self‐represented litigant to level the playing field against a represented party is seen by many as violating impartiality, even if the assistance is rendered to create a just result. In an effort to address the situation, the Indiana Supreme Court created the Pro Se Advisory Committee in April 2001. This article explores the long‐range implications of the issue of self‐represented litigants on Indiana's court system in hope that it will provide some insight for other jurisdictions. The first part of the article addresses the numbers of self‐represented litigants by tracking growth or declines in self‐represented cases and assessing whether there are any pockets of self‐represented litigants geographically or in certain case types. The second part of the article puts Indiana into context with the rest of the nation and reviews national trends. The third section reviews Indiana's response to self‐represented litigants over the last decade. The fourth section reviews current and ongoing projects in Indiana. The article concludes that the issue of self‐represented litigants will not fade away and that the challenge that guides the legal profession is how we provide equal access to justice for all who enter our courthouses.     

Law as Information in the Era of Data‐Driven Agency

This contribution introduces the mathematical theory of information that ‘informs’ computer systems, the internet and all that has been built upon it. The aim of the author is to invite lawyers to reconsider the grammar and alphabet of modern positive law and of the Rule of Law, in the face of the alternative grammar and alphabet of a data‐driven society. Instead of either embracing or rejecting the technological transitions that reconfigure the operations of the law, this article argues that lawyers should collaborate with the computer scientists that engineer and design the affordances of our new onlife world. This is crucial if we want to sustain democratic participation in law‐making, contestability of legal effect and transparency of how citizens may be manipulated by the invisible computational backbone of our rapidly and radically changing world.     

Legal ‘Elasticity’ and ‘Sidestepping’ in European Crisis Management of Financial Markets

This paper explores the roles played by law in crisis management of financial markets and some possible consequences. Three questions are raised ‐‐about the ‘elastic’ use of law, about ‘sidestepping’ existing legal order by invention of new structures and about redistributive consequences. These questions are appraised empirically in relation to three areas of financial market law: public support given to banking from 2008 onwards; English case law concerning derivatives contracts when confronted with Lehman‐style insolvencies; and the European Stability Mechanism, which during summer 2015 was being primed in relation to Greece. On the first two case studies, law, having been mightily stretched, did not break. Likewise, legal sidestepping, as epitomised by the European Stability Mechanism, may result in a less coherent legal structure; however such incoherence may be not be fatal to the ensemble. On all three fronts, redistributive questions remain controversial, but controversy in itself does not undermine legal structures. A particular form of theory, the Legal Theory of Finance, is discussed in light of the case studies. Such theory may have an unfulfilled longing to discern law‐like regularities (ironically chasing economics).     

The Value of ‘Integration’ in European Law—The Implications of the Förster Case on Legal Assessment of Integration Conditions for Third‐Country Nationals

The European Court of Justice's Förster judgment can lead to a reduction of legal uncertainty caused by integration requirements for third‐country nationals. The judgment has created a strong ‘assumption of integration’ after five years of legal residence because it equalised integration requirements for European students to access the welfare system of host Member States with a requirement of five years legal residence. Almost all pieces of European legal migration law also contain five‐year residence requirements after which the status of third‐country nationals improves. However, these improvements are mostly subjected to the fulfilment of additional integration requirements. To keep coherence with European law, courts will not be able to disregard the Förster‘assumption of integration’ when assessing the legality of integration conditions for third‐country nationals put in place in addition to residence requirements.     

Making the Case for Socio‐legal Research in Land Law: Renner and the Law of Mortgage

The aim of this article is to enhance knowledge of and to encourage further research into two areas not traditionally the subject of socio‐legal research, namely, the work of Karl Renner and the English law of mortgage, for three reasons. First, an account of them supports the proposition that a true understanding of law requires knowledge of its origins, content, and function. Second, Renner's theory can contribute significantly to our understanding of law by offering an alternative to the polarized debate between legal autopoiesis and other sociological conceptions of law. Third, it has much to tell us about the relationship between legal and social change. In particular, Renner's work suggests that those seeking legal reform should look not to the legislature, but to those capable of influencing its ‘social function’. Those frustrated by the lack of doctrinal reform within the law of mortgage can take heart, therefore, from the continual process of change evident in its social function. Ultimately, however, further socio‐legal research is required, for a more developed understanding of the law of mortgage.     

Hidden Law‐Making in the Province of Medical Jurisprudence

Judges articulate their role in controversial cases of medical ethics in terms of deference to Parliament, lest their personal morality be improperly brought to bear. This hides a wide range of law‐making activities, as parliamentary sovereignty is diffused by ‘intermediate law‐makers’, and judicial activity is more subtle than the deference account implies. The nature of litigation raises questions about the contributions of other legal personnel and also the nature of the parties' interests in test‐cases. While judges demonstrate an awareness of some of these issues and anxiety about the constitutional legitimacy of their work, a more nuanced account is needed of their proper role. This may be built on Austin's theory of tacit legislation. It may draw from human rights law. However, considerable work is required before the complexities of hidden law‐making can be properly incorporated into the province of medical jurisprudence.     

The Legality of Self‐Constitution

An influential strand in recent action‐theory employs constitutivist arguments in order to present accounts of individual agency and practical identity (and of the normative requirements that are constitutive of these phenomena). I argue for an extension of this framework into the interpersonal realm, and suggest using it to reassess issues in jurisprudence. A legal system is an instantiation of the solution to the inescapable tasks of self‐constituting action and identity‐formation in the presence of other agents. Law's validity and normativity can be enlightened when the constitutivist approach considers the external prerequisites of individuals' self‐conceptions qua agents. More specifically, this argumentative strategy allows a reassessment of Fuller's “internal morality of law.” Whereas, pace Fuller, morally substantive conclusions cannot be derived from formal criteria of legality, there are unconditional normative requirements that constrain law.     

Philosophy in Law? A Legal‐Philosophical Inquiry

Going beyond the debate between positivists and proponents of natural law, there is a controversy over whether there can or ought to be “philosophy in law” (i.e., whether anything within the subject‐matter of philosophy can also become part of the subject‐matter of law). According to Luhmann's autopoietic theory, law is a normatively closed system and accordingly remains completely independent from philosophy. Dworkin, on the other hand, asserts that constitutional law depends for its coherence and integrity on being encompassed within a particular political philosophy. This essay approaches “philosophy in law” from a functional rather than a legitimating perspective, and concludes against both Luhmann and Dworkin that the integration of philosophy in law is interstitial and limited. The consequence of this for law's validity and legitimacy is a likely increase in contestation and contestability. The essay concludes that by embracing pluralism as a philosophy, one can reduce and better manage contestability without ever becoming able to eliminate it.     

The ‘Reasonable Man’, his Nineteenth‐century ‘Siblings’, and their Legacy

The reasonable man is the best known, but not the only, legal construct to be born into the nineteenth‐century common law. This article introduces the man's siblings – including those from the areas of trust law, criminal law, contract law, and intellectual property law (both patents and trademarks). The fact that some of these ‘men’ changed the law is not controversial; this research further highlights that while several of these came to life in that century, only some had a significant role into the twentieth century. Those that did are tied to the foundations of our society through their role in facilitating innovation and consumer protection. The argument is that it was the constructs’ nature and their capacity to accommodate public policy issues that enabled the vitality of the ‘reasonable person ‘ (negligence) and the ‘person skilled in the art’ (patents).     

Between Law and Transnational Social Movement Organizations: Stabilizing Expectations of Global Public Goods

This article draws on Niklas Luhmann's theory and method to present transnational social movement organizations as a solution to the problem of increased expectations of global public goods which fail to find adequate accommodation in law. As a concrete example of the limits of law in this respect, it examines the non liquet of the World Court on the question of the illegality of nuclear weapons. The trajectory of anti‐nuclear norms is traced beyond the limits of law to the alternative structure of transnational social movement organizations, and the article presents such organizations as stabilizing increased expectations of global public goods through their recursive decision making and their capacity to continuously project those expectations at the legal and political systems. This generates observations on the concept of ‘global governance ‘, the structural relations between global civil society and international law, and the role of this form of organization in the evolution of the global political system.     

Acquiring a Community: The Acquis and the Institution of European Legal Order

Abstract: The theme ‘law and disorganised civil society’ raises the fundamental question concerning the junction between legal order and disorder, hence the passage from instituted legal order to the institution of legal order. The emblematic manifestation of this passage, in the framework of the European legal order, is the acquis communautaire: what is the nature of the process that leads from acquired community to acquiring a community? In a first, preparatory, step, it will be argued that determinate conceptions of truth, time and the giving and taking of reason underlie the process of acquiring a European community. These findings are confronted, in a second step, with Antonio Negri's theory of the multitude as a constituent power, which opposes revolutionary self‐determination to representation. Deconstructing this massive opposition, this paper explores three ways in which representation is at work in revolutionary self‐determination. As will become clear in the course of the debate, instituting (European) community turns on the interval linking and separating law ‘and’ disorganised civil society.     

Consequences of Tit‐for‐Tat Enforcement: Toward a Hippocratic Principle of Regulatory Implementation

The article discusses when tit‐for‐tat enforcement, an important strategy in responsive regulation theory, may generate intended reactions in communities of regulatees. Combining insights from compliance motivation theory, responsive regulation theory, and ethnographic studies of compliance, I hypothesize that tit‐for‐tat enforcement's probability of success depends on regulators’ institutionalized capacity to promote law–morality correspondence. Building such institutionalized capacity—so‐called “embeddedness”—simultaneously increases requirements for inspectorates’ competence. This article addresses three forms of law–morality correspondence: moral support for the law's content, the legislator's authority, and harmony between legal and moral guilt criteria.     

‘In Vino Veritas’: Truth and Method in Vinogradoff's Historical Jurisprudence

Sir Paul Vinogradoff is widely regarded as the intellectual heir of Sir Henry Maine. As such, he is implicated with Maine in the failure of historical jurisprudence to displace Austinian positivism at the heart of English legal theory. Yet Vinogradoff was of a different generation and intellectual provenance from Maine. By examining the relationship between Vinogradoff's historical jurisprudence and the work of the celebrated German historian Theodor Mommsen, this article aims to reaffirm the distinctiveness of Vinogradoff's contribution to English jurisprudence. It finds at the core of that contribution a Germanic commitment to ‘science’ and ‘method’ that proves both a strength and a weakness in the common law world of the time, and so reflects something of the character of that broader world itself.     

Constitutional Balance in the EU after the Euro‐Crisis

This article analyses how the European Union's response to the euro‐crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self‐determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand‐alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long‐term stability and legitimacy of the EU project.