Constitutionalism, Legal Pluralism, and International Regimes

The international legal order, although pluralist in structure, is in the process of being constitutionalized. This article supports this claim in several different ways. In the Part L I argue that most accepted understandings of constitution would readily apply to at least some international regimes. In Part II,I discuss different notions of constitutionalp luralism, and demonstrate that legal pluralism is not necessarily antithetical to constitutionalism. In fact, one finds a great deal ofconstitutionalpluralism within national legal orders in Europe. Part III puts forward an argument that the European Court of justice, the European Court of Human Rights, and the Appellate Body of the World Trade Organization are constitutional jurisdictions.I n the Conclusion, I respond what I take to be the most important objections to these claims

The New Lex Mercatoria and Transnational Governance

Over the past four decades, the transnational business community has successfully built a private system of transnational governance: the new Lex Mercatoria. The actors who operate this system – firms, their lawyers, international arbitrators, and legal academics – have evolved, and use, ‘a-national’ principles of contract and a system of private ‘courts’ to organize and regulate cross-border commercial exchange. National legal systems have adapted to the Lex Mercatoria, thereby enhancing the latter’s autonomy, and the EU has begun to move in the same direction

Proportionality Balancing and Global Constitutionalism

Over the past fifty years, proportionality balancingan analytical procedure akin to strict scrutiny in the United States-has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part 11 proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of proportionality, trace its global diffusion, and evaluate its impact on law and politics in a variety of settings, both national and supranational. In the conclusion, we discuss our major finding, namely, that proportionality constitutes a doctrinal underpinning for the expansion ofjudicial power globally. Although there is significant variation in how it is used, judges who adopt proportionality position themselves to exercise dominance over policymaking and constitutional development

Arbitration and Judicialization

The arbitral world is at a crucial point in its historical development, poised between two conflicting conceptions of its nature, purpose, and political legitimacy. Formally, the arbitrator is an agent of the contracting parties in dispute, a creature of a discrete contract gone wrong. Yet, increasingly, arbitrators are treated as agents of a larger global community, and arbitration houses concern themselves with the general and prospective impact of important awards. In this paper, I address these questions, first, from the standpoint of delegation theory. In Part I, I introduce the basic “Principal-Agent” framework [P-A] used by social scientists to explain why actors create new institutions, and then briefly discuss how P-A has been applied to the study of courts. Part II uses delegation theory to frame discussion of arbitration as a mode of governance for transnational business and investment. In Part III, I argue that the International Center for the Settlement of Investment Disputes (ICSID) is presently in the throes of judicialization, indicators of which include the enhanced use of precedent-based argumentation and justification, the acceptance of third-party briefs, and a flirtation with proportionality balancing. Part IV focuses on the first wave of awards rendered by ICSID tribunals pursuant to Argentina’s response to the crushing economic crisis of 2000-02, wherein proportionality emerged, adapted from the jurisprudence of the Appellate Body of the World Trade Organization

Neofunctionalism and Supranational Governance (unabridged version)

The transformation of the European Economic Community (EEC) stands as one of the remarkable political metamorphoses of modern times (Weiler 1991). Though some of its architects and proponents – like Jean Monnet, Robert Schuman, and Altiero Spinelli – envisioned something akin to an eventual United States of Europe, the 1957 Treaty of Rome created an international organization with restricted authority, limited purposes, and a small membership. Today’s EU is an altogether different, quasi-constitutional, federal entity (Burley and Mattli 1993). It oversees a vast Single Market, but also a monetary union and a single currency, and it is pan-European in its scope. It produces common policies, and procedures for on-going rule-making, across a broad spectrum of domains touching on virtually every dimension of modern life. The European Commission and the European Court of Justice (ECJ) have steadily augmented powers originally delegated to them by the Member States to position themselves as powerful agents of market and political integration (Tallberg 2000, 2002)

European integration and the legal system

'In dieser Arbeit zeigt der Autor die Entwicklung der Europäischen Gemeinschaft auf, indem drei verschiedene Perspektiven miteinander verbunden werden. Zuerst behandelt er die wichtigsten Eigenschaften des Integrationsprozesses seit 1959. Die Resultate zeigen, dass sich der europäische Wirtschaftsraum und der europäische verfassungspolitische Rahmen symbiotisch entwickelten. Die Aktivitäten der ökonomischen Akteure, der organisierten Interessen, der Kläger und Richter, sowie der europäischen legislativen und regulierenden Organe haben sich verflechtet, was zur Schaffung eines sich selbstversorgenden und dynamischen Systems führte. Zweitens bietet der Autor einen Überblick über die 'Konstitutionalisierung' des Vertragsystems und erhebe die Aktivitäten des Europäischen Gerichtshofes. Unter anderem hat die Konstitutionalisierung die Eigentumsrechte für transnationale Wirtschaftsakteure gesichert, die 'Ermessensmacht' der nationalen Richter ausgeweitet und den intergouvernementalen Charakter der EG geschmälert. Drittens untersucht der Autor im Detail den Einfluss, den das durch Gerichte anerkannte Prinzip des freien Warenverkehrs, festgeschrieben in den Römischen Verträgen (Art. 28-30), auf die wirtschaftliche Entwicklung und die politische Integration hatte.' (Autorenreferat)'In this paper, I chart the evolution of the European Community, combining three different perspectives. First, I examine the major features of the integration process since 1959. The evidence shows that European market and polity developed symbiotically, as the activities of economic actors, organized interests, litigators and judges, and the EC's legislative and regulatory organs became linked, creating a self-sustaining, dynamic system. Second, I provide an overview of the 'constitutionalization' of the treaty system, and survey the activities of the European Court. Among other things, constitutionalization secured property rights for transnational market actors, expanded the discretionary powers of national judges, and educed the EC's intergovernmental character. Third, I examine in detail the impact of the adjudicating the Rome Treaty's free movement of goods provisions (Art. 28-30) on the market building and political integration.' (author's abstract)

Why Europe Rejected American Judicial Review - And Why It May Not Matter

In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite important formal, institutional distinctions, there is increasing convergence in how the two systems of review actually operate

The European Court of Justice and the judicialization of EU governance

This Living Reviews article evaluates the most important strains of social science research on the impact of the European Court of Justice (ECJ) on integration, EU-level policymaking, and national legal orders. Section 2 defines the concepts of judicialization and governance, and discusses how they are related. As the article demonstrates, the “constitutionalization of the EU,” and its effect on EU governance, is one of the most complex and dramatic examples of judicialization in world history. Section 3 discusses the institutional determinants of judicial authority in the EU in light of delegation theory. The European Court, a Trustee of the Treaty system rather than a simple Agent of the Member States, operates in an unusually broad zone of discretion, a situation the Court has exploited in its efforts to enhance the effectiveness of EU law. Section 4 focuses on the extraordinary impact of the European Court of Justice, and of the legal system it manages, on the overall course of market and political integration. Section 5 provides an overview of the process through which the ECJ’s case law – its jurisprudence – influences the decision-making of non-judicial EU organs and officials. Section 6 considers the role of the ECJ and the national courts in monitoring and enforcing Member State compliance with EU law, a task that has provoked a steady Europeanization of national law and policymaking

Proportionality Balancing and Global Constitutionalism

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of proportionality, trace its global diffusion, and evaluate its impact on law and politics in a variety of settings, both national and supranational. In the conclusion, we discuss our major finding, namely, that proportionality constitutes a doctrinal underpinning for the expansion of judicial power globally. Although there is significant variation in how it is used, judges who adopt proportionality position themselves to exercise dominance over policymaking and constitutional development