Constitutionalism Without Constitution: Transnational Elites Between Political Mobilization and Legal Expertise in the Making of a Constitution for Europe (1940s−1960s)

By exploring how early political investments in favor of a European Constitution have been turned into a legal enterprise to constitutionalize the European treaties, this article analyzes the changing role of legal elites in the genesis of a European transnational order. At first, legal activities of constitution-making were closely linked to military issues and political mobilizations; later, the legal work of constitutionalization took a different path as a result of the process of differentiation of the European field of power and of the internal and contradictory logics of a newly created legal institution, the European Court of Justice (ECJ). By reconstructing the constitutionalization process, this article highlights the various types of elites then competing for the early definition of a European transnational order and, in particular, the capitals and representations of legal agents in the making of a Constitution for Europe.     

Are Monetary Unions Inevitable?

With the rapid growth of cross-border competition among currencies, informed observers predict that the new monetary unions are virtually inevitable in many parts of the world. In fact, predictions of such alliances are misleading and almost certainly wrong. Monetary unions necessarily imply a measure of collective action in the issue and management of money. An alliance requires allies—other states with similar preferences and a disposition to act cooperatively. A survey of proposed monetary unions shows that willing partners among sovereign states are just not all that plentiful. Conceivably some governments could be attracted to less demanding forms of monetary alliance, depending on bargaining context. But prospects for many full new monetary unions are dim at best.     

Legislative and educational alternatives to a judicial remedy for the transfer trauma dilemma

Transfer trauma is alleged to be an increase in morbidity and mortality in institutionally relocated chronically ill elderly. Efforts by the legal profession to persuade courts that transfer trauma should be a legally recognized phenomenon invoking judicial protections against transfer (the "transfer trauma argument") have been unproductive. In O'Bannon v. Town Court Nursing Center, Inc., the United States Supreme Court denied standing to elderly persons claiming a property interest in remaining in alleged substandard facilities. The Court rejected the argument that the possibility of transfer trauma constituted a deprivation of life or liberty that would have required due process protections of notice and hearing. Despite the Court's preclusion of transfer trauma litigation in a constitutional context and the general unwillingness of lower courts to recognize the phenomenon, attorneys continue to burden the judicial system with frivolous transfer trauma arguments. The unfruitful pursuit of a judicial remedy for the ethical and social problems that arise with relocation of the elderly continues, in part, because of a misguided belief that this distressing social phenomenon is best remedied by the courts. Judicial unwillingness to recognize the transfer trauma argument, however, does not preclude legislative consideration of the humanitarian issues concerning the institutional relocation of elderly persons. This Article examines gerontological research in order to understand the judicial rejection of the transfer trauma argument and argues in support of legislative and educational solutions for the ethical and social problems attending transfer.