“It’s Just Not Right”: The Ethics of Insider Trading

The Supreme Court doctrine defining insider trading and a competing theory called the misappropriation theory are criticized, focusing on the case of United States vs Chestman. A counter-argument is presented

The European Commission’s Activation of Article 7: Better Late than Never?

On Wednesday, the European Commission reacted to the continuing deterioration of the rule of law situation in Poland. The remaining question, of course, is why this argument has been used in the context of 7(1) as opposed of 7(2) given that the situation on the ground in Poland is clearly – in the view of the Commission, the Venice Commission and countless other actors – one of clear and persistent breach of values, as opposed to a threat thereof. The explanation might lie beyond the simple difficulty of the procedural requirements related to the sanctioning stage

Illiberalism within: rule of law backsliding in the EU

How should the European Union cope with Member States that no longer respect the basic values of the Union? This article reviews the responses of the major European Union institutions to Poland and Hungary as their governments removed checks on their power, eliminated the independence of judiciaries and failed to honour their European commitments. As the article demonstrates, the responses of EU institutions have so far been ineffective in bringing these Member States back into line with European values. We examine the various proposals that have been made to do better, concluding that there is promise in some legal strategies that are available now, but have yet to be tried

Criminal law as a security project

This paper asks how criminal might be understood as a security project. Following Valverde’s lead, it does this not by trying to define the concept of security, but by looking at the operation of the temporal and spatial logics of the criminal law. It looks first at the basic logics of time and space in conceptions of criminal liability and jurisdiction, before reviewing some recent developments which challenge these practices and what these might mean for criminal law as a security project

Illiberalism within: rule of law backsliding in the EU

How should the European Union cope with Member States that no longer respect the basic values of the Union? This article reviews the responses of the major European Union institutions to Poland and Hungary as their governments removed checks on their power, eliminated the independence of judiciaries and failed to honour their European commitments. As the article demonstrates, the responses of EU institutions have so far been ineffective in bringing these Member States back into line with European values. We examine the various proposals that have been made to do better, concluding that there is promise in some legal strategies that are available now, but have yet to be tried

A Realpolitik Defense of Social Rights

Social rights are controversial in theory, but many constitutions feature long lists of social rights anyway. But how can poor states ever hope to realize these rights? This article examines the practical bargaining over social rights that occurs when countries go broke and international financial institutions step in to direct internal fiscal affairs. Constitutional Courts can give their own governments leverage in bargaining with the IMF by making strong decisions defending social rights just at those moments. Because of the IMF\u27s commitment to the rule of law, it is hard for the IMF to insist as part of the conditionality of its loans that governments overtly disobey rulings of their countries\u27 high courts. Looking at Hungary (where the Constitutional Court made such a decision and the government used it to negotiate better terms with the IMF) and Russia (where the Constitutional Court made such a decision and the Russian government ignored it), the article addresses when this tactic might work and how strong court decisions can help governments protect their own populations in times of economic disaster

Other People\u27s PATRIOT Acts: Europe\u27s Response to September 11

After September 11, many countries changed their laws to make it easier to fight terrorism. They did so in part because the United Nations Security Council passed Resolution 1373 under its Chapter VII powers. The resolution required all Members of the United Nations to criminalize terrorism, to prevent their territory from being used to plan or promote terrorism, to crack down on terrorism financing, to tighten up immigration and asylum procedures and to share information about terrorists and terrorist threats with other states. This article examines what happened to the Security Council mandate when it got to Europe by first tracing the framework that the European Union developed to respond to the Security Council mandate and then by exploring the very different legal reactions of the UK and Germany within this common framework. Britain enacted and encouraged extreme measures to meet the terrorist threat while Germany complied with the Security Council within the framework of its established constitutional norms

Small Emergencies

In this Comment, I argue that the normal American constitutional order can be seen as thoroughly shot through with emergency law and that this constant sense of emergency has fundamentally shaped the possibilities of American constitutionalism. America is now-and has been since the First World War-virtually always in a state of emergency, one way or another. Sometimes these states of emergency have been local, other times they have been federal, and still other times they have been international. Sometimes these states of emergency have been political; other times they have been economic or social. Sometimes these states of emergency have resulted from weather, natural disasters, accidents and engineering flaws; other times, they are invoked in response to more deliberate and hostile threats-some immediate, some merely speculative. American presidents have been quite indiscriminate when it comes to emergencies--declaring them day in and day out in a variety of forms. If there is a panacea in the future to which American constitutional history points when emergencies will no longer be necessary and when we can return to a secure sense of divided and limited government, it seems to be as remote an ideal as socialism was in the Soviet Union. Nonetheless, many Americans-being a more optimistic lot than Russians and their former Soviet partners-still believe that they are moving toward an ever-more-perfect constitutionalism. The more realistic view is that emergencies are endemic to the American constitutional order, which has absorbed and rationalized them within the system of public law rather than holding them outside normal governance. In many ways, this is consistent with Levinson\u27s argument, which warns darkly of the permanent emergency