Public Law Scholarship Research Articles

Comparative Public Law Scholarship in the United States

The article addresses the paradoxical nature of comparative public law scholarship in the United States. The globalization of life makes foreign law as inescapable in the United States as in any other modern country. Foreign law models played a substantial role at the founding of the country and for some time thereafter when there was not much American law. But today comparative study of foreign models of public law plays hardly any role at all in the preparation of legislation or constitutional amendments in the United States, and a high-profile debate at the Supreme Court revealed significant antipathy on the Court to the use of comparative law in interpreting domestic law. In those senses, comparative public law scholarship appears to have little impact on U.S. law. There are, moreover, a number of unique features of American law that make it difficult to import legal models from other countries, most notably the especially strong skepticism toward reliance on the state and state regulation that pervades American society and legal thinking about law. One might conclude that a cosmopolitan world view is not very strong in America, but the article argues for a more nuanced view. The forces of globalism expose lawyers and courts in the United States constantly to foreign and international law, immigration continues to enrich the body of scholars working and teaching in the United States, and there is a rich body of foreign and comparative law scholarship in English that is readily available to students and scholars in the United States and that is produced at least in substantial part by scholars working in the United States. These features attest to a curiosity and openness in the United States to learning about foreign law. The article argues that America is home to strong tendencies in both directions, cosmopolitanism and its opposite, nationalism or chauvinism, and comparative public law scholarship in the United States should be seen as navigating between these opposing impulses.

평등의 원칙과 사법 (私法)

The principle of equality has traditionally been a topic in public law scholarship. In recent years, however, it is increasingly discussed in private law scholarship. This paper discusses how the principle of equality operates in private law. The conclusions are as follows: First, private law legislation as well as private law interpretation have been undoubtedly bound by the principle of equality. However, private law relationships between private persons are not. In this area, the so-called horizontal effect of principle of equality or rights thereto shall be denied. Second, there are examples in private law where the principle of equality appears to be applied. Resolutions, decisions, or di spositions by or in corporations, associations or long-term contractual relationship can be illegal if they are discriminatory; refusal to deal, suspension of dealings, or refusal of admission to an organization or long-term contractual relationship can be illegal if they are discriminatory; the exercise of ownership rights or the operation of an organization can be i llegal if it has been open to the publi c while excluding certain persons or groups of persons in contradiction to that practice. These are manifestations of the inherent limits of private autonomy, of the principle of good faith and fair dealing, of abuses of rights, and of the general right to personality, however, rather than of the principle of equality, especi ally constitutional equality. Finally, legislators can still impose obligations on private persons to treat other private persons equally, and many do. Given the inherent tension between private autonomy and equality, however, such legislation should be limited to specified traits and/or specified areas and should not be too broad. Relevant legislations in the United States and Germany demonstrate it. It is questionable whether the drafts for the general equal
 treatment act currently being discussed strikes such a balance.

Polner Ödön ismeretlen előadása az 1848. évi áprilisi törvényekről

Professor Ödön Polner (1865-1961) was one of the outstanding scholars of Hungarian public law. His legacy includes the manuscript of a lecture he gave in 1948, in which he reviewed the basic laws adopted in the first phase of the Hungarian Revolution of 1848. Within the framework of the historical constitution, these laws laid the foundations of nationalism and bourgeois constitutionalism in Hungary in the middle of the 19th century. Below, after a short description of Polner’s professional career and some introductory remarks, we publish the text of the lecture given in 1948.

Giuristi classici di origine ebraica nella scienza giuridica tedesca del XIX e della prima metà del XX secolo Trento, 6-7 ottobre 2022

Abstract - This report retraces the central passages of the conference Classical Jurists of Jewish Origin in German Legal Science in the Nineteenth and First Half of the Twentieth Century, organized by Fulvio Cortese and Luca Nogler of the University of Trent, two days of work in which the figure of Hugo Sinzheimer (1875-1945) and the jurists presented in the work, Jüdische Klassiker der Deutschen Rechtswissenschaft of 1938, were discussed. Scholars of public law, Roman law, labor law, as well as philosophy of law, morality and politics were confronted with the personalities and works of a selection of the jurists included in Sinzheimer's work.

Contested Facts: The Politics and Practice of International Fact-Finding Missions

Abstract International organizations (IOs) dispatch fact-finding missions to establish epistemic authority by objectively and impartially assessing contested facts. Despite this technocratic promise, they are often controversial and sometimes even fuel international disputes that challenge the epistemic authority of the dispatching organizations. Although the twenty-first century has witnessed a proliferation of United Nations (UN) commissions of inquiry, they have received surprisingly little attention in international relations (IR) scholarship. How can we explain this trend and the successes and failures of fact-finding missions, which sometimes even backfire on the IO authority? Drawing on IR theories of delegation, epistemic authority, and IO field operations as well as public international law scholarship on commissions of inquiry, this article develops an analytical framework for studying the delegation, implementation, and dissemination of fact-finding missions. It theorizes how and under what conditions international fact-finding missions close or widen credibility gaps and thus help to establish, maintain, or weaken the epistemic authority of IOs. The article illustrates this framework with a case study of the Ad Hoc Working Group on the Human Rights Situation in Chile, sent by the UN Commission on Human Rights in 1974 to investigate allegations of human rights violations and torture. The conclusion outlines a comparative research agenda on international fact-finding missions for IR that contributes to the study of knowledge production in IOs and the enforcement of international norms.

What is a good book? Epistemic virtues and the role of originality in Brazilian public law scholarship (1820s - 1889)

What is a good book? Epistemic virtues and the role of originality in Brazilian public law scholarship (1820s - 1889)

An Introduction to the Psychology of International Law

Cognitive studies and behavioural economics have been successful in domestic legal concerns and are increasingly utilized in public policy and regulation, their implication in public international law scholarship has not been systematically explored. We hope to fill two voids in the literature with this research: (1) the lack of behavioural insights in international law and economics; (2) the absence of international dimensions in behavioural law and economics; and (3) the avoidance of the importance of international norms by international political psychology. This piece provides a broad overview of the many psychological perspectives used throughout the research contributions and the challenges anticipated by those pursuing this line of inquiry. Despite these caveats, behavioural studies have yielded numerous insights that could greatly advance our comprehension of international law.

The Legal Regime Governing Mediterranean Fisheries: The General Fisheries Commission for the Mediterranean of the FAO and the Added-Value of Article XIV Bodies

Abstract The impact that the progressive development of public international law as relating to fisheries has had on the evolution of the role of Regional Fisheries Management Organizations (RFMOs) is fairly well-known, having periodically attracted interest from public international law scholars and practitioners. There are some instances though where this development has not been the sole factor leading to the emergence of decision-making by RFMOs on the management of fisheries found in marine waters worldwide. The RFMOs family is broad and heterogeneous, also encompassing some organizations which belong to the institutional setting of the Food and Agriculture Organization of the United Nations (FAO). The General Fisheries Commission for the Mediterranean (GFCM) is one of those FAO RFMOs. Established in 1949 through an international agreement adopted pursuant to Article XIV of the FAO Constitution, the GFCM is the RFMO currently exercising regulatory powers to ensure the sustainability of Mediterranean fisheries. Its institutional belonging to the FAO is key to understanding that throughout its seventy years of existence the GFCM has not been responsive only to the progressive development of public international law as relating to fisheries, like all other RFMOs. The story of its evolution and, consequently, that of the legal regime governing Mediterranean fisheries, is deeply intertwined with developments that took place within the FAO’s administrative framework. This piece will briefly detail these developments, trying to shed light on the fact that the internal decisions taken by the FAO to enable bodies established under Article XIV of the FAO Constitution to exercise their regulatory powers have been, in the specific case of the GFCM, as decisive as the progressive development of public international law relating to fisheries; not only in bringing about the legal regime governing Mediterranean fisheries, but also in ultimately ensuring that this regime is as effective as that implemented by other RFMOs established independently of the FAO.

Reflections on Chinese Scholarship and Perspectives Regarding International Law - The Rise of China and International Law: Taking Chinese Exceptionalism Seriously (Law and Global Governance Series). By Congyan Cai. New York: Oxford University Press, 2019. Pp. xvi, 348. Index. - Guoji Fa [International Law]. 6th ed. Edited By Cheng Xiaoxia and Yu Mincai. Beijing: Zhongguo Renmin Daxue Chubanshe [Renmin University

Scholarship in the discipline of international law may take different forms. It may deal systematically with general practice in a comprehensive way, resulting in a textbook or treatise that is a culmination of long years of teaching, research, and learning. It may examine specific topics of international law in an empirical, historical, and analytical exercise of intellect and reach considerable depth in understanding the topics, culminating in a monograph. Or it may focus on issues of narrow scope in an article, which, of limited size, is suitable for publication in a journal and yearbook. This review focuses on the public international law scholarship in all three forms published by Chinese scholars in the past few years, although the nature of a review necessarily limits the number of publications selected for review. The plan is to take stock of the mainstream thoughts and methods through reviewing the selected publications. The term “international law,” meaning public international law, is used throughout this review for sake of convenience.

Cart Challenges, Empirical Methods, and Effectiveness of Judicial Review

AbstractThis paper considers methodological standards in public law scholarship, showing the perils of current issues with access to relevant data and the promise of what can be achieved using better data and computational methods. It focusses on the effectiveness of Cart challenges – the largest group of claims for judicial review in the High Court – and discusses how the empirical question of the effectiveness of judicial review is linked with the normative question of what counts as ‘success’. The article demonstrates the perils of inattention to data limitations in the analyses of Cart claims by the Independent Review of Administrative Law and by the government and shows the promise of better data and computational methods through an unprecedented empirical study of Upper Tribunal decisions that followed Cart judicial reviews. It concludes that the government's claim that Cart challenges are a disproportionate burden on resources lacks adequate empirical basis.

Rethinking Supreme Court power in the study of judicial impact

AbstractThe extent to which courts meaningfully affect policy change has been the subject of heated debate among socio‐legal and other public law scholars. I argue here that one key source of tension in the literature has been the lack of any clear theory of judicial power, especially in compliance and other impact studies. Indeed, many studies have conflated “impact” and power—a move that serves to confuse rather than clarify the topic. In this paper, I outline a theory of judicial power for the study of judicial impact. I then demonstrate the utility of this theory using two historical case studies. Ultimately, I argue that this theory allows for clearer and better‐grounded inferences about the roles played by courts in policy and politics.

A Systemic Perspective

A Systemic Perspective

Empirical Study of 'Cart' Judicial Reviews

This paper tackles the question of methodological standards in public law scholarship, showing the perils of the current issues with access to relevant data and the promise of what can be achieved with better data and computational methods. It does so by focusing on the question of effectiveness of Cart challenges—the largest group of claims for judicial review in the High Court. Moreover, I discuss how the empirical question of effectiveness of judicial review is linked with the normative question of what counts as ‘success’. I show the perils of inattention to data limitations in the analyses of Cart claims by the Independent Review of Administrative Law and by the Government. I show the promise of better data and computational methods through my unprecedented empirical study of Upper Tribunal decisions that followed Cart judicial reviews. I find that the Government’s claim that Cart challenges are a disproportionate burden on resources lacks adequate empirical basis.

Mapping the Theoretical Turn in British Public Law Scholarship

Mapping the Theoretical Turn in British Public Law Scholarship

Indian public law scholarship roundtable: An introduction

Indian public law scholarship roundtable: An introduction

The Stellenbosch Consensus on Legal National Responses to Public Health Risks

Abstract The International Health Regulations (ihr), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to global health emergencies such as the ongoing covid-19 pandemic. Countries are permitted to exercise their sovereignty in taking additional health measures to respond to such emergencies if these measures adhere to Article 43 of this legally binding instrument. Overbroad measures taken during recent public health emergencies of international concern, however, reveal that the provision remains inadequately understood. A shared understanding of the measures legally permitted by Article 43 is a necessary step in ensuring the fulfillment of obligations, and fostering global solidarity and resilience in the face of future pandemics. In this consensus statement, public international law scholars specializing in global health consider the legal meaning of Article 43 using the interpretive framework of the Vienna Convention on the Law of Treaties.

The Stellenbosch Consensus on the International Legal Obligation to Collaborate and Assist in Addressing Pandemics

Abstract The International Health Regulations (ihr), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to potential global health emergencies such as the ongoing covid-19 pandemic. While Article 44 of this binding legal instrument requires countries to collaborate and assist each other in meeting their respective obligations, recent events demonstrate that the precise nature and scope of these legal obligations are ill-understood. A shared understanding of the level and type of collaboration legally required by the ihr is a necessary step in ensuring these obligations can be acted upon and fully realized, and in fostering global solidarity and resilience in the face of future pandemics. In this consensus statement, public international law scholars specializing in global health consider the legal meaning of Article 44 using the interpretive framework of the Vienna Convention on the Law of Treaties.

Distributing Civil Justice

With growing economic inequality, questions of distributive justice have become increasingly prominent in legal scholarship, particularly public law scholarship. Civil procedure scholarship has been no exception, traditionally addressing such questions under the heading of “access to justice.” And yet, despite the ubiquity of the phrase, discussions of access to justice have tended to focus almost exclusively on how procedural resources and opportunities should be distributed and, accordingly, who should receive any given share of those resources and opportunities. Much less attention has been paid to what, exactly, is being distributed—which specific goods access to justice actually comprises. Perhaps because of this vagueness, proponents of access to justice have coalesced around a fairly stable set of policy positions on a wide range of procedural issues. This Article shows that apparent consensus to be much less secure than scholars commonly assume. Only by abstracting from the specific goods associated with access to justice can scholars achieve such widespread agreement about which procedural rules and policies accord with distributive justice. In fact, scholars allude to multiple distinct goods when advocating broad access to justice. Though often treated as interchangeable or even synonymous, those goods, once distinguished, entail potentially conflicting implications for some of the doctrinal and policy issues that currently preoccupy civil procedure scholars, complicating the standard access-to-justice position on each one. Whether a particular policy promotes access to justice and satisfies the demands of distributive justice depends on which specific goods we’re trying to facilitate access to. The unadorned concept of access to justice doesn’t have the fully determinate, unidirectional policy valence that many scholars assume it does. The problem, moreover, runs much deeper than just an ambiguity about the aims of civil justice. For the different goods associated with access to justice can be traced to different—and often conflicting—functions of the modern liberal state. Such conflicts are fundamental, going to the core of liberalism, and so are no more likely to be definitively resolved in civil procedure than they are in any other context. That being the case, we should expose and acknowledge the conflicts between different procedural (and political) goals and restructure procedural rulemaking institutions to better negotiate them, rather than imagine that blunt appeals to access to justice alone can determine civil procedure’s proper response to increasing economic inequality. We shouldn’t expect the task of determining the legal implications of economic inequality to be any more straightforward—or any less contentious—in civil procedure than it has been in public law. And public law, for its part, may end up having to make some of the same kinds of difficult trade-offs that civil procedure scholars have been loath to confront.

Significant Academic Articles in 2019

1. 2019 saw the publication of a rich and diverse body of public law scholarship. This short piece discusses some of the most significant articles. The focus is on articles published in UK generali...

Justifying the Culture of Justification

Abstract: The ideas of the culture of justification – according to which it is the role of the courts to ensure that every act of the state that affects a person is substantively justifiable – and the related right to justification – which claims that every person possesses a moral and, ideally, constitutional right to the justification that the culture of justification recommends – are intuitively powerful and widely discussed ideas in public law scholarship, but their moral foundation is not yet well understood. This paper presents the moral case for these two concepts which centres on the status of every person as a justificatory agent. It argues that under conditions of reasonable disagreement in politics, this status requires that any law or act be justified not only procedurally (for example, in terms of a democratic vote) but also substantively, and it further demonstrates the necessity of the judicial protection of the right to justification as a matter of principle.