Deliberative Democracy in the EU. Countering Populism with Participation and Debate. CEPS Paperback

Elections are the preferred way to freely transfer power from one term to the next and from one political party or coalition to another. They are an essential element of democracy. But if the process of power transfer is corrupted, democracy risks collapse. Reliance on voters, civil society organisations and neutral observers to fully exercise their freedoms as laid down in international human rights conventions is an integral part of holding democratic elections. Without free, fair and regular elections, liberal democracy is inconceivable. Elections are no guarantee that democracy will take root and hold, however. If the history of political participation in Europe over the past 800 years is anything to go by, successful attempts at gaining voice have been patchy, while leaders’ attempts to silence these voices and consolidate their own power have been almost constant (Blockmans, 2020). Recent developments in certain EU member states have again shown us that democratically elected leaders will try and use majoritarian rule to curb freedoms, overstep the constitutional limits of their powers, protect the interests of their cronies and recycle themselves through seemingly free and fair elections. In their recent book How Democracies Die, two Harvard professors of politics write: “Since the end of the Cold War, most democratic breakdowns have been caused not by generals and soldiers but by elected governments themselves” (Levitsky and Ziblatt, 2018)

Toward a Theory of Effective Supranational Adjudication

Supranational adjudication in Europe is a remarkable and surprising success. Europe\u27s two supranational courts -- the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) -- issue dozens of judgments each year with which defending national governments habitually comply in essentially the same manner as they would with domestic court rulings. These experiences stand in striking contrast to those of many international tribunals past and present. Can the European experience of supranational adjudication be transplanted beyond Europe? Professors Helfer and Slaughter argue that the effectiveness of the ECJ and the ECHR is linked to their power to hear claims brought by private parties directly against national governments or against other private parties. Such supranational jurisdiction has allowed the European courts to penetrate the surface of the state, to forge direct relationships not only with individual citizens but also with distinct government institutions such as national courts. Over time, this penetration and the deepening relationships between supranational jurists and domestic legal actors have led to the evolution of a community of law, a web of nominally apolitical relations among subnational and supranational legal actors. The simple provision of supranational jurisdiction, however, is not a guarantee of effective adjudication. Drawing on the observations of scholars, practitioners, and judges, Professors Helfer and Slaughter develop a checklist of factors that enhance the effectiveness of supranational adjudication. They distinguish among those factors that are within the control of member states; those that are within the control of the judges themselves; and those that may be beyond the control of either states or judges. Isolating the factors in this way provides both a rough metric for evaluating the effectiveness of other supranational tribunals and a potential set of prescriptions for judges on those tribunals seeking to enhance their institutions\u27 effectiveness. After developing the checklist, Professors Helfer and Slaughter use it to analyze the United Nations Human Rights Committee (UNHRC). Although the UNHRC was established expressly as a committee of experts rather than a court, analysis of its recent practice reveals that it is becoming increasingly court-like. Moreover, within the constraints imposed by severely limited resources, UNHRC members are independently following many of the checklist prescriptions for increased effectiveness. The next step is for the organization to enter into a sustained dialogue with its European counterparts, harmonizing its decisions with theirs in some areas while consciously preserving its own distinctive jurisprudence in others. Structured and regular interaction between these tribunals would add additional voices to an emerging transjudicial conversation, potentially laying the foundation for a global community of law

Sword or Shield? Setting Limits on SLUSA’s Ever-Growing Reach

Concerned by the overwhelming presence of vexatious federal securities-fraud class actions, Congress passed the Private Securities Litigation Reform Act of 1995 to increase the procedural burden plaintiffs would face in filing these nonmeritorious suits. Instead of being deterred, plaintiffs simply brought their suits in state court. Congress responded with the Securities Litigation Uniform Standards Act of 1998 (SLUSA), making federal court the exclusive venue for securities-fraud class actions. However, Congress expressly saved from SLUSA\u27s reach claims that were traditionally brought in state court under corporate law through the Delaware carve-out. Though this exemption was meant to protect the historic dual federal-state securities-regulation regime, recent appellate court opinions have stretched SLUSA\u27s reach too far, leaving plaintiffs incapable of bringing many traditional state-law claims essential to the proper policing of corporate law regardless of the forum. This Note addresses the implications of such a broad reading of SLUSA and advocates a two-pronged approach that will simultaneously effectuate SLUSA\u27s purpose while still preserving these important state-law claims. By looking to the heart of a complaint, courts can best effectuate congressional intent both to limit problematic litigation practices and to preserve the important role federalism plays in the securities-law context

Information Behavior and Political Preferences

This article shows that citizens consider policy positions for the formation of their political preferences when they actively seek and find high-quality information, while they dismiss passively acquired and low-quality information. The study develops an extended theory of information and political preferences that incorporates the process of information acquisition and its connection with information quality. A novel experimental design separates the effects on political preferences due to information behavior as an activity from those due to selective exposure to information. The study applies this design in a laboratory experiment with a diverse group of participants using the example of issue voting and European integration in the context of the 2014 European Parliament elections