Institutional Arguments Research Articles

Does Ginsburg’s Judicial Voice Get the International Level?

Abstract In several civil law systems of justice, the judiciary’s role traditionally gives rise to an institutional debate due to the absence of precedent as a source of formal law. The courts’ ability to operate thus depends, among other matters, upon public acceptance of their function. However, in the U.S. system, Justice Ginsburg, as a “judge’s judge,” properly sustained the role of the judiciary’s legitimacy by defining her considerations of “substitutes of consent”: deference to precedent, judicial restraint, collegiality, judicial interdependence, and procedural accountability. Among these factors, deference to precedent played a crucial role that emerged from Ginsburg’s “measured motion” of decision-making. Should her values framework thus have an impact on civil law systems of justice? To answer this question, we will examine two civil law procedure institutions, along with their jurisprudence, through the lens of Justice’s Ginsburg judicial philosophy. The results show how the traditional debate concerning these institutions must move from the institutions themselves to the judiciary’s role and its “motions”, following the path traced by Ginsburg’s judicial voice. Thus, her judicial philosophy now represents an international guideline to delineate those “substitutes of consent” and the courts’ decision-making approach to enhance the courts’ judicial legitimacy.

Co-producing ethnoracial categories: census-takers in the 2017 Peruvian National Census

ABSTRACT The growing literature that analyzes the production of ethnoracial categories has focused primarily on the role of nation-states, social movements, and transnational trends. The internal institutional debates that influence these processes have received limited attention, and the role of census-takers in particular remains largely unexplored. Drawing from in-depth interviews with 54 census-takers in the 2017 Peruvian National Census, this paper argues that census-takers are influential actors in the production of ethnoracial categories and can be considered street-level bureaucrats. In our study, census-takers’ interpretations of the ethnoracial question and categories emphasized dimensions of race and ethnicity that increased the likelihood of residents to identify as mestizos. These findings suggest that, despite their temporary role, census-takers are important actors in the production of ethnoracial categories in societies where these are contested.

The EU at Stake? Changes in European Identification in Southern Europe and in Germany Following the Great Recession

This article looks at the evolution of European identification during the Great Recession in four Southern European “debtor” countries and in Germany. Although the crisis initially had a negative effect on European identification in the five countries, its medium-term impact was more severe in the Southern European countries than in Germany. While we find that microeconomic variables shed little light to account for these changes, we combine multilevel institutional and identitarian approaches to explain changes in European Identification. Following the multilevel institutional argument, attitudes might depend not only on citizens perceptions of institutional performance at the European level, but also on their perceptions of institutional performance at the national level; and they can operate through two mechanisms: citizens might transfer their positive (or negative) evaluations from the national to the European level, or, alternatively, they may substitute or compensate their negative national evaluations with positive evaluations of the European level. Our results indicate that both mechanisms were at work: at the peak of the Eurozone crisis, substitution effects—especially in the countries of the South—helped sustain European identification when it was at its weakest. However, transfer effects were also relevant to explain the recovery of European identification in two of the three countries in which the latter was greatest: Germany and Portugal. Following the identitarian argument, we find that the positive effect that national identification had on European identification previous to the Great Recession, had disappeared or weakened in four of the five cases by 2014. Nonetheless, this positive relationship had been fully restored in Germany and Portugal after the Great Recession, in 2017, signalling that the fading link between the two identifications might have been only temporary, at least in these two countries.

Does the Profit Motive Matter? COVID-19 Prevention and Management in Ontario Long-Term-Care Homes.

We introduce evidence that for-profit long-term-care providers are associated with less successful outcomes in coronavirus disease 2019 outbreak management. We introduce two sets of theoretical arguments that predict variation in service quality by provider type: those that deal with the institution of contracting (innovative competition vs. erosive competition) and those that address organizational features of for-profit, non-profit, and government actors (profit seeking, cross-subsidization, and future investment). We contextualize these arguments through a discussion of how contracting operates in Ontario long-term care. That discussion leads us to exclude the institutional arguments while retaining the arguments about organizational features as our three hypotheses. Using outbreak data as of February 2021, we find that government-run long-term-care homes surpassed for-profit and non-profit homes in outbreak management, consistent with an earlier finding from Stall et al. (2020). Non-profit homes outperform for-profit homes but are outperformed by government-run homes. These results are consistent with the expectations derived from two theoretical arguments—profit seeking and cross-subsidization—and inconsistent with a third—capacity for future investment.

Revisiting the Economic Performance and Institutions Debate in SSA Countries: The Role of Legal Origins in the Context of Ethnic Heterogeneity

We contribute to the literature of economic performance and institutions by analysing how the interplay between historical legal roots and ethnic heterogeneity can determine current economic outcomes estimating various specifications of the national production function. Our empirical investigation includes a sample of 35 Sub-Saharan (SSA) countries which are typically characterised by a high degree of ethnic fragmentation, often emanating from haphazardly drawn colonial borders, while the legal systems in Africa have been exogenously implanted by the respective colonial powers. Our main results show that although the adoption of common British law (Common) is generally associated with better economic outcomes, in the presence of high ethnic heterogeneity the French civil law (Civil) outperforms British common law in terms of national economic performance because it is more effective in promoting political stability, and coordination. The latter characteristic is necessary for the efficient use of natural resources that are often abundant in SSA countries and constitute a major source of government revenue.

Psicanálise, Clínica e Universidade: Impasses e Possibilidades

Resumo O presente artigo toma lugar no campo problemático da inserção da psicanálise no contexto universitário, seus impasses e possibilidades. Posicionamo-nos desde uma pergunta pela função possível, talvez eventual, da universidade na transmissão da psicanálise e na formação do analista. Procuramos pensá-la a partir do cenário da prática clínica referida à psicanálise na universidade, tomando como balizas os efeitos recolhidos de nossa experiência de prática e supervisão, bem como debate institucional, em uma clínica-escola vinculada à universidade. Partindo de uma revisão de operadores conceituais que nos permite situar os problemas em jogo, dando espaço ao diálogo com os aportes dados por colegas inseridos no contexto brasileiro, buscamos apontar algumas contribuições para este campo de reflexão.

Strategies for Compliance with Non-Binding International Decisions: The Spanish Case

The Spanish State is among the countries with high standards of compliance with its international obligations on human rights. Regardless of the reasons that explain the respect for such commitments, it is surprising to note that the degree of compliance differs depending on the international guarantee mechanism. Compliance with treaties whose oversights is attributed to a court, such as the European Court of Human Rights, is stricter than compliance with covenants under the United Nations, whose supervision is recognised to the committee established by each treaty or by their annexed protocols. Even though the Committees also respond to individual complaints raised by persons subject to the Spanish State jurisdiction, the binding nature of their resolutions is questioned by some State institutions. Both members of the executive and the judiciary. This paper analyses the grounds that justify this two-speed compliance and questions the institutional arguments that support such reality. Our reflection insists that the obligations derived from all human rights treaties ratified by Spain are identical and demand an equal response from the State institutions. The international human rights law and the Spanish Constitution itself so require it.

What Is behind Anti-Corruption?

Under Putin and Xi, the post-communist authoritarian regimes in Russia and China had both initiated anti-corruption programs that exhibited some parallels but were also profoundly different. Through a contextualized comparison, and drawing on Russian and Chinese sources, this article puts forth an institutionalist argument that these campaigns were being driven by divergent strategic objectives shaped by different formal and informal institutional settings. Whereas Putin’s more limited anti-corruption program was essentially a defensive move, embedded in factionalism, primarily aimed at protecting his political power under “competitive” authoritarianism, Xi’s broader and deeper campaign could be seen as an offensive initiative, targeting factionalism with a long-term goal to strengthen the CCP party-state, in addition to the obvious short-term objective of his own power consolidation.

An institutional right of refugee return

AbstractCalls to recognize a right of return are a recurring feature of refugee crises. Particularly when such crises become long‐term, advocates of displaced people insist that they be allowed to return to their country of origin. I argue that this right is best understood as the right of refugees to return, not to a prior territory, but to a prior political status. This status is one that sees not just any state, but a refugee's state of origin, take responsibility for safeguarding their welfare. This entitlement I characterize as an institutional right: a right that presupposes, and is a necessary feature of, a particular institution. The institution of which the right of return is an indispensable part is the international political system that sees authority exercised by sovereign states. The institutional argument for a right of refugee return presupposes two basic factual claims about states: they play a central role in safeguarding rights and they pursue exclusionary policies of border control. Importantly, the institutional view presupposes only that states do perform both functions, not that they are justified in doing so. On a purely normative level, the institutional account assumes little more than the moral equality of human beings.

Digital Education and Artistic-Visual Learning in Flexible University Environments: Research Analysis

The constant development of digital technologies has allowed living in a digital environment based on connections, also transforming the context of the educational process. Experiences show that digital technologies have influenced the way of learning and, consequently, the way of teaching. Learning in the digital age is a complex process since it is a multifaceted and diverse action. The aim of this research is to identify global trends in digital education and its link with the learning of artistic and visual education in higher education settings, during the period 2000–2019. For this, bibliometric techniques have been applied to 1291 documents, obtaining results from the scientific activity of the main authors, research institutions, and countries that promote this topic. The data show increasing relevance, particularly in the last three years. The main subject area is the social sciences. The study has detected the lines of research that are related to the Internet, education, visuals, computer programs, learning, digital media literacy, and educational technology. This work contributes to the academic, scientific, and institutional debate to enhance decision-making based on existing information.

When do coalitions form under presidentialism, and why does it matter? A configurational analysis from Latin America

This article proposes a new approach to the study of coalition formation in presidential regimes. Drawing on a dataset covering 33 Latin American governments, the article shows that coalition cabinets are, mostly, the product of pre-electoral agreements. I present a six-stage timing of coalition agreements, including four degrees of earliness. Then, I challenge this consideration with the most common – institutional – arguments from the literature about the survival of coalitions in presidential regimes. The findings are quite interesting since they point out that earlier agreements are relevant conditions for enduring coalitions. Moreover, and surprisingly, I show that the institutional argument seems to have been overrated by the literature.

Two strings to one bow? Article 47 of the EU charter of fundamental rights in the EU competition case law: between procedural and substantive fairness

In recent years, the EU competition framework has been under strain because of the increasing market interconnectivity. Criticisms have raised regarding the EU competition enforcement model. In response, institutional debate and measures have focused on the enhancement of fairness in this area of EU law. Following the entry into force of the Lisbon Treaty, another source of ‘fairness’ in the enforcement of EU competition law is the EU Charter of Fundamental Rights. Article 47 of the EU Charter is the most invoked provision in the context of EU competition litigation. Considered to reaffirm the EU general principle of effective judicial protection, this article constitutionalises the right to an effective remedy and to a fair trial. Although the existing literature has highlighted the overall influence of fundamental rights in the enforcement of competition law, the contribution of Article 47 Charter, as interpreted by the Court of Justice of the European Union, in enhancing fairness in EU competition policies remains, so far, underexplored. The current paper aims to fill this gap in the literature by offering a threefold input. First, the paper situates the discussion on fairness in EU competition law in the broader philosophical debate regarding various conception(s) of fairness. Second, the paper analyses the case law of the EU Court of Justice on Article 47 of the EU Charter in EU competition litigation. Finally, the paper discusses what kind of ‘fairness’ Article 47 strengthens in the area of EU competition law enforcement.

Do Investors Rely on Robots? Evidence from an Experimental Study

Robo advice has moved its first steps in the Anglo-Saxon countries and is now rapidly gaining market share at a global level. The phenomenon fueled a growing and still not conclusive institutional debate about potential benefits and risks to financial consumers, based also on investors’ biases and behaviours that online platforms could trigger to the detriment of robo advisees. The present paper provides some insights into attitudes and behaviours that might prevail in a digital environment among young investors, representing the category of users potentially more involved by the development of the automated advice. In detail, the study investigates whether individuals’ propensity to follow the recommendation received from an advisor changes depending on whether the advisor is a human or a robot. The analysis is based on data collected through an ad hoc developed laboratory experiment run in the Cesare Lab of LUISS University with a sample of 180 students. Students were given an initial monetary endowment and were asked to choose between six different portfolios of financial activities; after being profiled through a questionnaire aimed at eliciting their risk tolerance (Grable and Lytton’s Risk Tolerance Quiz; 2003), they received the advice, either from a human advisor or from a robo advisor (i.e. via a computer platform) depending on the treatment they had randomly assigned before entering the experimental session. Then, they were asked again to choose among the six portfolios in order to capture whether the propensity to follow the recommendation depends on its source (human versus robo). Finally, participants were asked to answer several questions eliciting risk preferences, financial literacy (actual and perceived) and digital literacy, serving as control variables when modelling the probability to follow the advice. Our results show that the probability to follow the advice does not depend on the source of the recommendation but rather on the alignment between the self-directed choice made before receiving the advice and the recommendation subsequently received: the propensity to follow the advisor (either human or robo) increases if the advice confirms individual’s own beliefs about her/his investor profile. This result might be explained by referring to individuals’ attitude towards the so called ‘confirmation bias’. However, when the self-directed choice differs from the recommendation received, participants may be more likely to follow the advice given by a human advisor and less likely to follow the advice formulated by an algorithm. Also the gender of the advisor seems to matter: women tend to follow the advice provided by a female advisor more frequently compared to the case of the recommendation given by a male advisor. This work is part of a wider research on FinTech that CONSOB started in 2016, in collaboration with several Italian universities, with the aim of exploring opportunities and risks for investor protection and the financial system as a whole, related to the application of technological innovation to the provision of financial services. In particular, supplementing Lener, Linciano and Soccorso (2019, edited by) and Caratelli et al. (2019), this document widens the field of investigation by referring to a specific target of the population - the so called millennials and post-millennials – and using complementary and innovative methods. According to an evidence-based approach, insights from the present study may suggest specific investor protection initiatives, also in terms of financial education activities designed for a clearly-identified segment of the population (the so called millennials and post-millennials, in this case). Evidence from the present work might be extended further with respect to the consumers’ perception of the fairness of algorithms used to provide financial services, the cognitive heuristics and biases underlying decision making process and investments in the digital environment and nudges which may be used to enhance investor protection.

On Their Own? Women Running as Independent Candidates in the Middle East

Abstract This paper considers examples of women successfully running as independents at the national level in the Middle East, investigating how existing electoral systems impacted their ability to contest political office. Women in the region face a host of challenges when it comes to launching political campaigns outside of sociocultural norms. Most extant literature on political participation focuses on parties as the primary vector for female participation in the Global North and South. However, women in the Middle East often cannot rely on this mechanism due to the absence of political parties or existing parties’ unwillingness to back women for cultural reasons. Yet, the region hosts many female independents holding office at the national level. Through the cases of Jordan, Egypt, and Oman, I unpack this phenomenon using an institutional argument and assess what the emergence of such candidates bodes for the future of women in the Middle East.

Synthesis of Multi-indicator System Over Time: A Poset-based Approach

In recent years, sustainable development has become one of the main issues of scientific and institutional debate. The literature on this concept is wide and often presents conflicting positions. This leads to considering sustainable development as a contested concept. The growing interest and importance of this topic has also led to an increasing focus on the aspect of its measurement. Dealing with the measurement of complex phenomena, like sustainable development, means dealing with synthesis. The traditional and dominant approach to the synthesis of multi-indicator systems of cardinal variables is the use of the aggregative-compensative approach. Despite its success, this approach presents a series of critical issues. In this paper, we propose a method of synthesizing multi-indicator systems over time based on the Partial Order Theory. Applying and comparing the method we proposed and an aggregative method, the Adjusted Mazziotta–Pareto Index, to one of the 15 sustainable development goals, we highlight the strengths of the new methodological proposal.

Contact tracing apps and values dilemmas: A privacy paradox in a neo-liberal world

Contact tracing apps are presented as a solution, if not the solution, to curb pandemics in the Covid-19 crisis. In France, despite heated public institutional debate on privacy related issues, the app was presented by government as an essential benefit for protecting health and lives, thus avoiding both politicians and citizens to feel morally responsible and looking guilty, and as essential to recover our freedom to move. However we argue that, while detection of cases have still not been reported after 10 days and one million app downloads - a situation comparable to Australia who launched its app a month before -, the adoption of the app generates important risks to our informational privacy, surveillance and habituation to security policies. It also may create discrimination, distrust and generate other health problems such as addiction and others as 5G technology continues to be deployed without prior impact studies. Finally the smartphone app against covid epidemics appears as an extreme case of the privacy paradox where the government plays on the immediate benefits and downplays long-term concerns while inducing a technology of self. Contact tracing apps may become an emblematic case for digital transformation and value changes in the western world.

La operacionalización del concepto de territorio en el INTA: los proyectos regionales con enfoque territorial

Esta investigación cualitativa tiene como objetivo analizar la incorporación de las ideas de territorialización en el Instituto Nacional de Tecnología Agropecuaria (INTA). Plantea cómo estas ideas fueron operacionalizadas a través de un instrumento programático que se denominó PRET y cuáles fueron los debates internos que surgieron en el INTA al momento de su creación. El principal aporte de este trabajo consistió en explicar de qué manera el enfoque territorial fue utilizado por el INTA para adaptar su gobernanza a un contexto político y social que demandaba una articulación más profunda de sus políticas de intervención con las demandas surgidas en los territorios.

Women’s Representation in the Post-Soviet Space: Latvia and Lithuania

Using a most-similar case design to compare Latvia and Lithuania, this study examines the role electoral systems play in affecting greater representation of women in post-Soviet democracies. After Latvia’s most recent election, Latvia demonstrated a much higher percentage of women in its parliament (31%) than Lithuania (21%). Interestingly, in spite of having higher descriptive representation, Latvia has no quotas or women's organizations/caucuses while Lithuania implements voluntary quotas and has a prevalent women's caucus. This study advances an institutional argument, hypothesizing that the Latvian parliament's higher percentage of women can be attributed to its proportional representation electoral system. Lithuania has a mixed system that has favored a majoritarian pole, which in turn, has adversely affected women’s electoral success. In many ways, women’s substantive representation in Latvia and Lithuania is only marginally different. However, in regard to the sheer number of women in parliament, the difference between Lithuania and Latvia proves relatively marked. The Latvian and Lithuanian cases demonstrate that proportional representation electoral systems are more favorable to women candidates than mixed systems, even in the absence of quotas and a women’s movement and particularly in the context of post-Soviet democracies

Consecuencias del feminicidio en violencia machista. Análisis de necesidades de hijos, hijas y familiares en Cataluña

Si bien todas las muertes producen un gran impacto social y emocional en la familia de la víctima, cuando se trata de violencia machista el efecto es aún mayor; y en el caso de los hijos y las hijas podemos hablar de un impacto emocional doble. Uno corresponde a la pérdida de la madre como figura protectora y el otro tiene que ver con el hecho de que sea la otra figura paternal quien le ha quitado la vida. Nuestro objetivo es presentar los resultados preliminares de una investigación cualitativa, realizada en Cataluña, que analiza las necesidades de cuidado que tienen los hijos, hijas y familiares de víctimas mortales de violencia machista. Se han estudiado tres casos entrevistando a lxs hijxs, familiares y profesionales que intervinieron en cada caso, y se han analizado las sentencias judiciales de los mismos. Pretendemos así, visibilizar muchas de las situaciones de injusticia y desigualdad "silenciada" en la que se encuentran estas personas. Asimismo, buscamos, promover el debate político e institucional para el diseño de estrategias de intervención integrales que tengan en cuenta la voz de las personas afectadas y eviten su "polivictimización”.

Competition Law as a Form of Social Regulation

For a long time considered a fringe topic, of interest for developing and emergent economies, the question of inequality and poverty has recently taken center stage in mainstream competition law scholarship in the developed countries. Some of this literature deplores the current state of competition law, which has largely ignored this issue, and argues for a different paradigm that would actively engage with economic inequality and its causes. Taking a social contract perspective, and noting the hybrid nature of competition law, which is a tool of economic order, but also a form of social regulation, this study explores the main difficulty in enriching competition law with equity concerns: the economic foundations of mainstream competition law in welfare economics and the crucial separation of the economic efficiency dimension from that of distributive justice. It then examines alternative traditions in economic thought, which are more compatible with an egalitarian perspective. It then turns to the institutional question, exploring the various instruments that governments dispose in order to equalize, and the respective role of more conventional tools against inequality, such as taxation, concluding that the institutional argument against equity concerns in competition law does not stand serious scrutiny. It also critically engages with the argument that there is a trade-off between equality and efficiency, and again concludes that this argument does not stand serious scrutiny. The final part revisits the thorny question of what is to be equalized. Drawing on the idea of “complex equality,” it presents the contours of a fairness-driven competition law.