Fairness at a Time of Perplexity: The Civil Law Principle of Fairness in the Court of Justice of the European Union

The general principle of fairness, recently articulated by the Court of Justice of the European Union in the context of consumer law, is bound to prompt ambivalent scholarly reactions. Fairness in private law could be dismissed as hopelessly indeterminate: yet another venue of judicial balancing, a technique already seen ad nauseam in Luxembourg, whereby lip service is paid to conflicting considerations, but no real solace can be found against regressive outcomes of law and policy choices. At the same time, the judicial articulation of a general principle of fairness in private law could be seen as a prompt for domestic courts to entertain context-sensitive considerations, in such a way as to redress, within the boundaries of judicial discretion, the predicaments of situationally disadvantaged parties. A Rawlsian reading of fairness would point precisely in this direction. Particularized, policy-oriented inquiries into the distributive stakes of each dispute, such as the relative impact upon low-income subjects of (in)validating certain contract terms or (dis)allowing certain remedies, could ultimately raise the standards of substantive justice in the EU. These pages, based on the premise that distributive analysis in private law adjudication is desirable, set forth the argument that the CJEU has recently proven capable of identifying distributive trade-offs in the name of fairness, that such uses of judicial discretion do not exceed the scope of the court’s institutional competence, and that the Court should not retreat from this laudable path. To be sure, at times the Court has also misused the idea of fairness, reducing it to an empty representational device through which facile slogans could unduly displace serious distributive analysis. Nevertheless, the Court’s occasional embrace of the principle in substantive terms deserves attention and praise. In the midst of sobering reflections on law’s complicity in perpetuating Europe’s inequalities, it may be important to take stock of narrow, but clear, progress through law. As a result of fairness-driven holdings in Luxembourg, state legislators have already faced considerable pressure to control aggressive debt collection practices in austerity-ridden countries. Progress results as well from the inter-institutional dialogue increasingly triggered by the supranational regulation of private autonomy. The transmission belt that connects the Troika’s recipes for growth to the member state governments’ austerity reforms is notoriously rigid and leaves little room for textured accounts of its social consequences. It is in the context of contract law adjudication that, by contrast, such accounts find a stage. The post-crisis anecdotes of private misery that are found in the litigation of contract disputes acquire not just visibility, but also legal, justiciable form. Shoring up such hard-won expressive outlets in the face of countervailing messages is essential. The argument proceeds as follows. Section 2 outlines the CJEU’s ‘discovery’ of fairness as a general principle of civil law in the path breaking case E Friz. Section 3 equates the general principle of fairness with distribution-sensitive adjudication, and illustrates how the CJEU’s balancing of conflicting interests in its preliminary rulings could be regularly informed by lucid forms of distributive analysis. Section 4 posits that, given the conceptual and systemic autonomy of civil law principles, judicial fairness can radiate meaning beyond the confines of B2C disputes and onto broader inequality debates without any undue blurring of canonical partitions (private/constitutional, legal/political). By way of comparison, Section 5 identifies several functional equivalents of the general principle of fairness in U.S. contracts adjudication and recounts their rise and fall. Section 6 shows how the decline of judicial fairness has led U.S. progressive jurists to pursue the goal of fairer transactions outside of court, and points to the downsides of excising fairness from contracts adjudication. On the basis of this assessment, Section 7 affirms the usefulness of a judicial principle of fairness in supranational private law, but it cautions the CJEU against resorting to false or facile dichotomies in the balancing exercise that fairness requires. The essay concludes by joining an emerging strand in current legal scholarship. This strand remains critical of the shortcomings of the EU legal architecture from the perspective of distributive justice, and yet clings to law – as both process and substance – whenever law can effectively fence off two ongoing phenomena: the deployment of economic dogma as a conversation stopper in policy-making circles, discussed in Section 8, and the endless proliferation of ‘unweighted’ narratives in EU discourse, which are too often balanced against one another as if they all had equal importance and legitimacy (Section 9)

Bargaining and Distribution in Special Education

The problem of unequal access to educational services in the US has received the attention of courts and legislators for several decades. A traditional source of inequality, increasingly addressed by scholars and law-makers, is the discrimination against students with disabilities, who were once deprived tout court of real educational opportunities.\u27 In this field, legislative intervention has been momentous and political forces across ideological lines have converged to provide children with disabilities proper access to public learning. The reform of special education has achieved tangible results in the last thirty years and has provided children with unprecedented opportunities

Non-Parties: The Negative Externalities of Regional Trade Agreements in a Private Law Perspective

In private law theory and in international trade law alike, a new strand of scholarship has emerged in recent years. This strand is characterized by a focus on market actors who are excluded from deals struck by other parties and suffer economic hardship as a result. Scholars have also focused on doctrines and legal concepts apt to identify this type of hardship and to provide non-parties with justiciable claims and remedies. Private-law and trade-law scholars involved in this mode of research are often moved by justice concerns and by the realization that rules based solely on the enforcement of bilateral deals may be structurally antithetical to a progressive distribution of resources. Towards the goal of contributing to this literature, I draw inspiration and materials from comparative private-law theory. I then review a range of private law doctrines designed to protect non-parties from the negative externalities of discrete agreements, and show how the use of private law analogies in the context of trade theory yields both analytical pay-offs and normative caveats. I conclude that the ongoing attempts to identify, within the framework of international trade law, actionable remedies in favor of non-parties to trade agreements are analytically helpful, but remain distributionally ambivalent and need stronger normative vectors

Lochner in Europe: A Comment on Keith Whittington\u27s Congress before the Lochner Court Symposium: Lochner Centennial Conference

In 1904, St. Louis, Missouri was the place to go. In conjunction with its spectacular world\u27s fair, the city also hosted the Universal Congress of Lawyers and Jurists, known in academic circles as the foundational event of American comparative law.1 Within a big screen entirely devoted to the Lochner2 centennial, this comment aims at opening a window on another centennial - the hundredth anniversary of comparative law in the United States.Though inspired by the Universal Congress, this comment does not partake in the celebratory spirit of anniversaries.3 Far from espousing a romanticized or universalist conception of comparative law, these pages simply stem from the belief that foreign perspectives may help revisit conventional wisdom, and occasionally reveal blind spots in one\u27s vision

The \u27Justice Deficit\u27 Debate in EU Private Law: New Directions

This essay outlines the ongoing debate on the justice deficit of EU private law – the ‘social justice’ debate – and then points at an underexplored avenue of inquiry that is essential for this debate to stay meaningful and constructive. Future research should aim to calibrate EU private law to the socio-economic asymmetries of the EU market, and to counterbalance the uneven weight of uniform rules, where they appear desirable, with proper compensatory mechanisms

Trade and History: The Case of EU-Algeria Relations

Introduction: The centennial of Albert Camus’s birth, duly marked by academic conferences in history and literature departments, has had little resonance in European Union (“EU”) legal scholarship. Yet the political engagement of the French-Algerian Nobel Laureate is a natural entry point into the EU’s laws and policies vis-à-vis the global South, and Algeria is today a particularly salient example of the EU’s relations with North Africa.[1] The Parisian tragedies of January 2015 have brought into the spotlight all that can go wrong in post-colonial societies and called into question the efficacy of a vast array of French, European, and more broadly “Western” choices in the Mediterranean region. In the aftermath of the Charlie Hebdo massacre, the legal community has naturally focused on the scope of free speech and on the resilience of secular democracies, but fresh and deeper analyses are needed in many other dimensions, ranging from migration management to strategies for the development of Europe’s southern neighbors

Distribuzione (commerciale) e diritto: variazioni su tema

Nel febbraio 1988 Roberto Pardolesi festeggiava il suo quarantesimo compleanno circondato da un gran gruppo di studenti, tutti galvanizzati dalla sua presenza e dalla sua proverbiale energia. Unico e inimitabile, era brillante e alternativo, una forza anti-sistema all’interno di un ateneo ricco di menti acute ma anche di convolute gerarchie. Dall’Università di Chicago – sede del suo LL.M. nel 1976 – aveva importato non solo l’analisi economica del diritto, ma anche improbabili magliette a strisce, un forte spirito di iniziativa, e un’attitudine radicalmente antiformalista nel diritto come nella vita. Gli regalammo il libro I miei primi quarant’anni di Marina Ripa di Meana, allora in gran voga, ed altri oggetti di maggior valore anche se non necessariamente di miglior gusto. Tante cose sono cambiate da allora, ma nutro a tutt’oggi enorme gratitudine per quella miscela di rigore accademico e di scanzonatezza che Roberto aveva saputo inventare. Erano per molti di noi anni difficili. Si trattava di scegliere che cosa fare di noi stessi e di una generica e inflazionata laurea in giurisprudenza. Roberto non dava ordini, ma prendeva straordinariamente sul serio sia noi in quanto persone sia ogni riga che scrivevamo, e soprattutto si proponeva, più o meno consapevolmente, quale role model. Il lavoro accademico del tipo da lui esemplificato richiedeva enorme dedizione, studio assiduo, gioco di squadra e propensione all’interdisciplinarità. La finalità di questi sforzi era partecipare al gioco delle scienze sociali: capire il ruolo del diritto nelle dinamiche del mercato e collocare ogni regola giuridica, ogni pronuncia giudiziale da annotare per Il Foro Italiano, all’interno di un grande e complicato mosaico di scala globale. Era un progetto irresistibile, che avrebbe influito profondamente sulle nostre scelte accademiche e di vita

Autism in the US: Social Movement and Legal Change

The social movement surrounding autism in the US has been rightly defined a ray of light in the history of social progress. The movement is inspired by a true understanding of neuro-diversity and is capable of bringing about desirable change in political discourse. At several points along the way, however, the legal reforms prompted by the autism movement have been grafted onto preexisting patterns of inequality in the allocation of welfare, education, and medical services. In a context most recently complicated by economic recession, autism-driven change bears the mark of political contingency and legal fragmentation. Distributively, it yields ambivalent results that have not yet received systemic attention. This article aims to fill this analytical vacuum by offering, first, a synoptic view of the several legal transformations brought about or advocated for by the autism movement and, second, a framework for investigating their distributive consequences

Then and Now: Mark Pettit’s Modern Unilateral Contracts in the 1980s and in the Age of Blockchains

Having read Jack Beermann and Fran Miller’s moving and insightful essays, I find myself unable to express in further words how wonderful Mark was and how much I miss him. I ask therefore that Jack and Fran allow me to join their celebration of Mark’s inimitable brilliance and generosity. What I offer today is a particular word of praise for an article by Mark which is not only my favorite, but also an extremely well regarded contribution to contract law scholarship: Modern Unilateral Contracts. 1 In this oft-cited and oft-quoted piece,2 published in this Law Review in 1983, Mark took issue with the conventional wisdom of the time. He showed that unilateral contracts did not belong at the far margins of contract law, where Karl Llewellyn and others would have them,3 but rather, very near the center, where they were doing major work for the little guy in a range of judicial proceedings.4 I will first highlight the impact, both doctrinal and jurisprudential, of this article at the time Mark wrote it. I will then move the clock to the present day and discuss the striking analytical value of unilateral contracts in the age of blockchains and smart contracts—a testament to Mark’s insight and evergreen legacy

Limits of the Classic Method: Positive Action in the European Union After the New Equality Directives

The European Union\u27s member states are currently implementing two new directives, prohibiting discrimination on such grounds as race, ethnicity and religion. Both directives allow for positive action - a European version of affirmative action confined to soft, non-quota measures arguably reconcilable with the canon of individual equality. Based on time-honored EC provisions on gender discrimination, the European Court of Justice has already scrutinized, and occasionally prohibited as in breach of EC individual rights, states\u27 positive action in favor of women. The Court is now likely to extend the same mode of scrutiny to the forms of discrimination contemplated by the new directives. Against this development, this Article argues for a reconceptualization of positive action. Rather than exceptional aberration from the paradigm of individual equality, affirmative action in both soft and hard mode is an identity-sensitive mechanism for the reallocation of resources, to be placed along a continuum of redistributive techniques. Identity-based redistribution measures are already known to both EC and state legal actors, in ways that a traditional individual-rights discourse both fails to capture and succeeds at hiding. At the present stage of integration, states\u27 most significant redistributive policies are mostly exempt from judicial review. States should therefore be able to experiment with affirmative action in favor of minorities within national constitutional constraints and in light of local equilibria, but with no supranational review. The Open Method of Coordination - a soft instrument of EU governance recently applied to the fight against social exclusion may provide states with proper EU guidance in matters of identity-based policies