coordination through judicial dialogue

International courts regularly cite each other, in part as a means of building legitimacy. Such international, cross-court use of precedent (or “judicial dialogue”) among the regional human rights courts and the Human Rights Committee has an additional purpose and effect: the construction of a rights-based global constitutionalism. Judicial dialogue among the human rights courts is purposeful in that the courts see themselves as embedded in, and contributing to, a global human rights legal system. Cross-citation among the human rights courts advances the construction of rights-based global constitutionalism in that it provides a basic degree of coordination among the regional courts. The jurisprudence of the U.N. Human Rights Committee (HRC), as an authoritative interpreter of core international human rights norms, plays the role of a central focal point for the decentralized coordination of jurisprudence. The network of regional courts and the HRC is building an emergent institutional structure for global rights-based constitutionalism

Annulment proceedings and multilevel judicial conflict

This open access book provides an exhaustive picture of the role that annulment conflicts play in the EU multilevel system. Based on a rich dataset of annulment actions since the 1960s and a number of in-depth case studies, it explores the political dimension of annulment litigation, which has become an increasingly relevant judicial tool in the struggle over policy content and decision-making competences. The book covers the motivations of actors to turn policy conflicts into annulment actions, the emergence of multilevel actors’ litigant configurations, the impact of actors’ constellations on success in court, as well as the impact of annulment actions on the multilevel policy conflicts they originate from

Bruno zevi, the continental European emissary of geoffrey scott’s theories

Peer ReviewedPostprint (author's final draft

The Burqa Ban: Legal Precursors for Denmark, American Experiences and Experiments, and Philosophical and Critical Examinations

As the title of the article suggests, “The Burqa Ban”: Legal Precursors for Denmark, American Experiences and Experiments, and Philosophical and Critical Examinations, the authors embark on a factually investigative as well as a reflective response. More precisely, they use The 2018 Danish “Burqa Ban”: Joining a European Trend and Sending a National Message (published as a concurrent but separate article in this issue of INTERNATIONAL STUDIES JOURNAL) as a platform for further analysis and discussion of different perspectives. These include case-law at the international level while focusing attention on recent rulings and judicial reasoning by the ECtHR and the ECJ; critical thought-experiments in religion, morality, human rights, and the democratic public space; a contextualized account of burqa-wearing interventions by federal and state governments and, moreover, various courts in the United States; and philosophical commentary and, in some instances, criticism of the Danish and/or European (French, etc.) approach. The different contributions have different aims. The section on case-law at the international level reports on those central judgments that, in effect, helped to pave the path for the Kingdom of Denmark’s burqa ban. Concerning the concurring judges at the ECtHR, the opinions served to uphold a preexisting ban and to grant a wide margin of appreciation to the national authorities, thereby limiting the Court’s own review. As regards to the ECJ, the legality of company rules that contain a policy of neutrality for the workplace was examined, with a similar outcome. The authors who discuss religion, morality, human rights and the democratic public space are endeavoring to, respectively, appeal to ethics as a testing stone for law and to both challenge and address several forms of “expressivist worry” in connection with face veils. In doing so, the authors ask a number of thought-provoking questions that hopefully will inspire public policymakers to careful analysis. While the section that is devoted to American perspectives highlights a comprehensive survey of political and legal responses to, in particular, full-face veils like the burqa, the relevant author also incorporates public perceptions and, in the course of examining these, draws a parallel to “the fate” of the hoodie. The constitutionality of burqa-wearing in America, so it also appears, is partially an open question, but differentiating between religious, political, or personal reasons is a de jure premise. Given that the Danish legislators who drafted law L 219 to ban burqa-wearing in public places rely on a reference to political Islam, they relegate religious and personal reasons to the private domain, thereby also adopting secularism as a premise. This is explored in the last author response of the article, more precisely, in an account of the underlying materialism that, in turn, is applied to Muslim women. If policymakers and legislators engaged in Thinking Things Through exercises, they could, as a minimum, avoid law-making strategies that are not in the spirit of the theory they themselves invoke, albeit tacitly. While the aim of, as it were, arresting culturally self-contradicting legislators is unique for the section in question, all the authors who contribute to the joint research project have one end-goal in common, namely to inform about important perspectives while at the same time opening up for parameters for (more) fruitful, constructive and (if need be) critical debate in the future. With this in mind, four recommendations are presented by the research director for the project. Legally, politically, socially and culturally, conflict-resolution should not translate the relationship between rulers and the ruled into a separation ideology, an instance of controllers versus the controlled. All things being equal, that is the objective limit for a democratic society

Reconsidering online reputation systems

Social and socioeconomic interactions and transactions often require trust. In digital spaces, the main approach to facilitating trust has effectively been to try to reduce or even remove the need for it through the implementation of reputation systems. These generate metrics based on digital data such as ratings and reviews submitted by users, interaction histories, and so on, that are intended to label individuals as more or less reliable or trustworthy in a particular interaction context. We suggest that conventional approaches to the design of such systems are rooted in a capitalist, competitive paradigm, relying on methodological individualism, and that the reputation technologies themselves thus embody and enact this paradigm in whatever space they operate in. We question whether the politics, ethics and philosophy that contribute to this paradigm align with those of some of the contexts in which reputation systems are now being used, and suggest that alternative approaches to the establishment of trust and reputation in digital spaces need to be considered for alternative contexts

Social transmission of leadership preference:knowledge of group membership and partisan media reporting moderates perceptions of leadership ability from facial cues to competence and dominance

While first impressions of dominance and competence can influence leadership preference, social transmission of leadership preference has received little attention. The capacity to transmit, store and compute information has increased greatly over recent history, and the new media environment may encourage partisanship (i.e. ‘echo chambers’), misinformation and rumour spreading to support political and social causes and be conducive both to emotive writing and emotional contagion, which may shape voting behaviour. In our pre-registered experiment, we examined whether implicit associations between facial cues to dominance and competence (intelligence) and leadership ability are strengthened by partisan media and knowledge that leaders support or oppose us on a socio-political issue of personal importance. Social information, in general, reduced well-established implicit associations between facial cues and leadership ability. However, as predicted, social knowledge of group membership reduced preferences for facial cues to high dominance and intelligence in out-group leaders. In the opposite-direction to our original prediction, this ‘in-group bias’ was greater under less partisan versus partisan media, with partisan writing eliciting greater state anxiety across the sample. Partisanship also altered the salience of women’s facial appearance (i.e., cues to high dominance and intelligence) in out-group versus in-group leaders. Independent of the media environment, men and women displayed an in-group bias toward facial cues of dominance in same-sex leaders. Our findings reveal effects of minimal social information (facial appearance, group membership, media reporting) on leadership judgements, which may have implications for patterns of voting or socio-political behaviour at the local or national level

Civil Procedure as a Critical Discussion

This Article develops a model for analyzing legal dispute resolution systems as systems for argumentation. Our model meshes two theories of argument conceived centuries apart: contemporary argumentation theory and classical stasis theory. In this Article, we apply the model to the Federal Rules of Civil Procedure as a proof of concept. Specifically, the model analyzes how the Federal Rules of Civil Procedure function as a staged argumentative critical discussion designed to permit judge and jury to rationally resolve litigants’ differences in a reasonable manner. At a high level, this critical discussion has three phases: a confrontation, an (extended) opening, and a concluding phase. Those phases are the umbrella under which discrete argumentation phases occur at points we call stases. Whenever litigants seek a ruling or judgment, they reach a stasis—a stopping or standing point for arguing procedural points of disagreement. During these stases, the parties make arguments that fall into predictable “commonplace” argument types. Taken together, these stock argument types form a taxonomy of arguments for all civil cases. Our claim that the Federal Rules of Civil Procedure function as a system for argumentation is novel, as is our claim that civil cases breed a taxonomy of argument types. These claims also mark the beginning of a broader project. Starting here with the Federal Rules of Civil Procedure, we embark on a journey that we expect to follow for several years (and which we hope other scholars will join), exploring our model’s application across dispute resolution systems and using it to make normative claims about those systems. From a birds-eye view, this Article also represents a short modern trek in a much longer journey begun by advocates in city states in and near Greece nearly 2500 years ago

A Comparison of the American Model and French (-Inspired) Appellate Model

Both the American and the French legal system have a three-tiered structure. However, the respective roles and functions of the courts on each step of the ladder is vastly different in both. Whereas the general system in the U.S. is to have one trial court and two ‘higher’ courts (a court of appeals and a supreme court), the French / European continental system consists of two ‘factual’ courts (the basic level and the court of appeals), and one ‘legal’ (the supreme court) with limited or even inexistent possibilities to look at the facts. The purpose of this thesis is to look at these two models of division of labor between the three tiers through the lens of (i) the procedural leeway each of the courts has and (ii) their focus on fact or law, in function of what questions can be raised in appeal and have to be answered by the courts. We will add Germany to the comparison, as (i) the structure of its court system was inspired by the French, but (ii) has evolved over the years and has been recently (2002) overhauled specifically as to appeals, both to the second level of courts and to the supreme court. We will do so by examining the avenues open for the parties in filing an appeal as well as for the courts in adjudicating those. It will be clear that the distinct philosophies regarding the appellate systems have influence on the entire organization of the different court systems. We conclude that the present-day German system offers the best differentiation of roles between the three tiers while balancing access to the appellate and supreme court level

The Time Has Come for a Universal Water Tribunal

Since its inception in 1981, the International Water Tribunal has emerged as a non-governmental body with a multidisciplinary composition and a mandate based on conventional and customary international water law, which holds public hearings in order to address water-related complaints. This Article describes the historical background of the proposed Universal Water Tribunal (“UWT”) and significant difficulties on the horizon facing the proposed Tribunal (including political, practical, and legal-technical considerations). It then summarizes the key factors of such Tribunal and, finally, touches upon the proposed model based on an expanded concept of jurisdiction. The main underlying thesis is that, whereas the traditional model for interstate dispute settlement offers only limited possibilities of redress to non-state actors, the UWT provides them with the opportunity to present their demands before an environmental justice forum

Institutional Choice and Targeted Killing: A Comparative Perspective

For over a decade, the use of targeted killing has been one of the most controversial issues in counterterrorism policy and law. One longstanding debate over this tactic concerns the allocation of decision-making and oversight authority among the branches of government. As attempts to settle this debate through textual and historical sources yield indeterminant answers, scholars tend to examine them through a functionalist prism, asking what institutional structures best serve the interests of national security while ensuring adequate accountability and preventing unnecessary force. This article, retaining that functionalist framing of that issue, will approach the question through a comparative law analysis. Three of the countries most heavily engaged in global counterterrorism—the U.S., the U.K., and Israel—have adopted substantially different approaches for regulating counterterrorism targeting, each according a primary supervisory role to a different governmental actor: the Executive in the U.S., Parliament in the U.K., and the Judiciary in Israel. This article describes, compares, and critically analyzes these approaches. Drawing on comparative institutional analysis theory, it then examines the findings and reaches three main conclusions. First, that in light of the judiciary’s unique structural perspective and expertise, some judicial involvement in developing the legal standard that guides and constrains government action is desirable. Second, that suboptimal decision-making and illegality due to executive bias are more likely to occur where the executive is accountable only to its own internal oversight mechanisms. And third, that in both presidential and parliamentarian systems, legislators do not have and are unlikely to have any sort of meaningful influence on executive behavior in this domain. The article concludes by suggesting a few possible institutional reforms