Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union

Abstract:  The article establishes three propositions. First, if a constitution establishes the principles of subsidiarity and proportionality as legal principles, questions of competencies are closely tied up with questions of regulatory policy. This means that the Treaty carves out a powerful role for the Court of Justice to assess the jurisdictional reasonableness of market intervention when reviewing whether the EU was legally competent to act. Second, general scepticism about courts being able to play such a demanding role in policing jurisdictional boundaries in federal systems are unjustified in the EU. The new procedure established in the Constitutional Treaty, which is likely to be included in any renegotiated constitutional settlement, involves national Parliaments and the Commission building a written record addressing the relevant policy issues on which the court can base its review. Additionally national courts serve as an external check on the Court of Justice, disciplining the Court of Justice to focus on taking competencies seriously or facing the prospect of national courts disapplying EU law on the grounds that it was enacted ultra vires. Third, even though there are some promising points of departure in its case law, the Court of Justice has not yet adopted a doctrinal framework that effectively operationalises the Treaty's commitment to subsidiarity and proportionality in the context of the common market.     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

An Analysis of Hounsfield Unit Values and Volumetrics from Computerized Tomography of the Proximal Femur for Sex and Age Estimation

Sex and age are two elements in the establishment of a biological profile for forensic identification. While the pelvic bones are the most ideal structures for sex estimation, the condition of a body is not always ideal due to the nature of death, such as in mass disasters, or postmortem processes. This study utilized CT scans and resultant 3D models of 100 male and 100 female adults of known ages ranging from 18 to 98 years old to collect volumetric and Hounsfield unit measurements of the proximal femur. Equations were created to establish logistic regression models for sex estimation and linear regression models for age estimation. The resultant sex estimation method had an accuracy of 93.5% and utilized the volume of the proximal femur. This study provides three linear regression models for age with an accuracy range of 86%–92% ±12 years. As imaging technologies are increasingly adopted for forensic purposes, the power of 3D data will provide the opportunity for more quantitative and reproducible analyses. The proposed method for sex and age estimation provides a reliable tool that can be utilized in both day-to-day casework and disaster victim identification.     

Constitutionalism and experimentalist governance

This comment explores how experimentalist governance is connected to wider constitutional questions and makes two claims. First, there are good reasons to believe that experimentalist governance can only flourish in a world where the precepts of liberal democratic constitutionalism have been widely accepted and institutionalized. Experimentalist governance is part and parcel of the world of liberal democratic constitutionalism. Second, it is not only governance in Europe that can be described in experimentalist terms. The concept is also useful to describe the dynamics of European constitutionalism.