Fall 2014 - Elective Courses
Comparative Equality Rights in the Family and the Market
Denise Réaume, University of Toronto
Philomila Tsoukala, Georgetown Law
Liberal legal regimes are structured on the basis of a sharp distinction between the family and the market, with each domain perceived as serving fundamentally distinct functions. The family is understood as the realm of emotional relations of altruistic care, based on natural bonds between people. By contrast, the market is set up as the domain of competitive selfishness, mediated by contractual relations. How sharp the contrast is between the family and the market will partly depend on the role of the state in the provisioning of basic welfare to individuals. In all cases, the legal system is central in constructing the line between these different realms.
The interaction between the family and the market has distributive consequences that are often deeply gendered raising questions about the role of law in promoting equality between women and men, as well as between different types of families. Welfare regimes may be designed to mediate between the family and the market but often end up reinforcing the dichotomy between them and the gendered roles that result. Against this backdrop, the courts have a role to play in shaping these institutions with a view to promoting equality. Courts interpret the rules that structure these systems and sometimes pronounce upon their validity through the invocation of constitutional norms.
This course will explore the relationship between the family and the market in light of often proclaimed legal and constitutional commitments to sex equality. It starts from the premise that basic commitments to equality cannot be meaningfully examined without an exploration of multiple legal technologies in domains of both public and private law. We will explore a range of such technologies drawn from Canadian, US, UK, and European law that bring into focus aspects of these connections, their consequences for equality, and the available legal responses.
In the wake of retractions in the welfare state, should family law play a more redistributive role? Should welfare regimes require applicants to integrate into the paid workforce as quickly as possible despite domestic responsibilities? How should maternity or parental leave provisions be structured to take account of both domestic responsibilities and the value of workforce participation? As courts interpret and apply these regimes or respond to legal challenges about compliance with constitutional equality norms, how alert are they to the deeper connections between family and market and the state's role in filling gaps? What role can courts play in moving family structures and market norms in egalitarian directions?
2 Credits. Evaluation: Participation (25%) and 3 short papers distributed over the term involving analysis of an issue covered in the course (1500 words each, including title page, footnotes and bibliography) (75%). These could take the form of a case comment, or a critical analysis of one or more articles assigned in the readings, or appropriate alternatives in consultation with the instructors.
2-credit students will do three short papers. A maximum of six students will be accepted for the "one-plus option", giving priority to students who are fulfilling a writing requirement at their law school. Students taking this option will receive three credits; they will write a paper of at least 6,000 words, excluding footnotes and bibliography.
Comparative Tax Systems
Ann O'Connell, Melbourne Law School
This course provides a comparative perspective on the tax systems of
various countries. The aim of the course is to develop an understanding
of the reasons why tax systems differ and why they are sometimes so
similar. The course will analyse the characteristics that many tax
systems have in common, the areas in which tax systems differ and the
factors (legal, political, economic, social and cultural) that cause
these similarities and differences. The course will cover areas such as
tax at different levels of government, different types of taxes
(including income taxes, consumption taxes, capital and wealth taxes and
environmental taxes), tax administration and tax policy making and
2 Credits. Evaluation: Attendance and Class Participation (20%); Final Paper of 4,000 words (80%).
European Human Rights Advocacy Practicum
Nuala Mole, The AIRE Centre
Cian Murphy, The Dickson Poon School of Law, King's College London
Europe has a complex and changing legal landscape for the protection of human rights. Two legal systems operate across the European continent: the Council of Europe's European Convention on Human Rights has 47 Member States while the European Union's 28 Member States are bound by the law of that organization. Although all EU Member States are parties to the European Convention on Human Rights the EU also has its own Charter of Fundamental Rights that now has full legal force. The complexity of the law therefore makes advocacy on human rights in Europe a challenging task for all lawyers. This practicum will develop students' knowledge base, intellectual and analytical tools, and practical experience, so as to leave them better equipped to work in this growing field. In their preparation for, and participation in, the weekly seminars at CTLS, the students will be given the necessary foundational knowledge to understand European human rights law as well as the opportunity to prepare for, reflect on, and critique, the practice of European human rights advocacy.
These seminars will be led by the team of Nuala Mole, Founder and Senior Lawyer at the AIRE Centre, and Cian Murphy, CTLS Academic Co-Director for 2014/2015 and a leading scholar and consultant on European human rights law. In their fieldwork with the AIRE Centre, the students will develop their capacities in legal research, drafting, and advocacy, both in respect of individual cases and systemic problems. Students will therefore develop an appreciation not just of the law and legal theory - but also of the challenges of European legal practice. Topics will cross the three broad areas of work undertaken by The AIRE Centre: litigation before the European Court of Human Rights, advocacy on human rights questions in the European Union, and the Western Balkans Rule of Law Programme.
2 + 2 Credits. Evaluation: Seminar component: Participation in Class Discussions (25%), Substantive Project Report of 2,000 words (50%), Class Presentation (25%). Experiential component: The experiential component will have a pass/fail assessment. Students will keep a placement diary that will aid them in the preparation of their presentation for the seminar component's assessment and in the writing of their placement report.
European Law and Policy in Crisis
Philomila Tsoukala, Georgetown Law
This course will explore the changes in European law and policy brought about by the euro crisis. We will spend the first part of the course exploring the basic legal framework of the European Union as it stood before April 2010. We will discuss the constitutional aspects of the Union, such as its basic institutions and the division of competence between Member States and the Union. We will also examine selected topics in substantive EU law such as the free movement of goods, people, and services, the legal framework for euro governance, and social policy. We will then shift gears to examine the legal changes brought about by the euro crisis. In examining the legal changes brought about after April 2010, we will be asking questions such as: How much does the new legal framework change fundamental aspects of EU law? How much does the new euro governance framework affect other aspects of EU law, such as social policy? What are the questions of legitimacy and democratic governance raised by this new legal framework and how can the EU effectively deal with them? What are the implications for the future of EU law and policy?
3 Credits. Evaluation: Class Participation (20%); Reaction Papers (20%); Final take-home exam (8 hours) (60%).
International Commercial Arbitration
Chiara Besso, University of Torino
Arbitration has become the default dispute resolution mechanism of commercial transnational disputes. The course will introduce students to the basics of the mechanism, dealing with its theoretical foundation and its practical application. It will cover the major phases of international commercial arbitration, including drafting arbitration agreements; arbitrators disclosures and challenges; anti-arbitration injunctions; conduct of the hearing (witness testimony, use of experts, discovery); multi-party and class arbitration; recognition, enforcement and setting aside of arbitral awards. The course will review the major international institution and their procedure rules, and will analyze the role of state courts in enforcing or challenging arbitration agreements and awards. Students will experience some of the most important steps in international arbitration by role playing.
2 credits. Evaluation: Class Participation (30%), Class Presentation of the Paper Draft (10%), Final Paper of 4,000 words (60%).
International Economic Law after the Global Financial Crisis
Marcel Peeters, University of Amsterdam
The financial crisis has triggered various far-reaching reforms of international financial law and regulation. Stricter capital and liquidity requirements aim to make individual banks and banking groups safer and some of these requirements explicitly address systemic risks as well. 'Macro-prudential' considerations have also informed changes to market conduct regulation, for example where short selling has been prohibited or restricted during periods of market turmoil. Financial market infrastructures (FMIs) have received much greater regulatory interest, not only as possible sources of systemic risk, but also as means to greater stability (for example, through central clearing of over-the-counter derivatives). The renewed realization that some financial institutions are too big to fail under normal insolvency rules has led to the design of special resolution regimes that would allow such institutions to fail without endangering the economic system. Relatedly, the Eurozone crisis has rekindled interest in legal mechanisms for an orderly restructuring of sovereign debt.
This course will consider the main themes and objects of these and other legal and regulatory responses to the recent crisis. At a truly global level, we will focus on post-crisis principles and other forms of 'soft law' promulgated by recognized international standard-setters, such as the Financial Stability Board (FSB), the Basel Committee on Banking Supervision and the International Organization of Securities Commissions (IOSCO). Actual and proposed reforms of 'hard' financial law and regulation will be studied using examples taken from the EU, the US and other jurisdictions.
2 Credits. Evaluation: Class Participation and In-Class Exercises (30%); In-Class Exam (70%).
Language Rights Policy
Denise Réaume, University of Toronto
Although language protections have often taken a back seat to other human rights, constitutional and human rights theorists have recently begun to turn their attention to the issue of language policy, partly in response to the heightened significance that language is likely to take on in European politics in future. This seminar will explore four competing models for dealing with language issues:
- The negative liberty or anti-discrimination model characteristic of
many domestic legal systems, such as the U.S., and adopted by the
International Covenant on Civil and Political Rights and the European
Convention on Human Rights
- The linguistic diversity model more recently instituted in Europe
through the European Charter for Regional or Minority Languages
- The territorial model adopted by some multilingual countries such as Belgium and Switzerland
- The Canadian 'Official Languages' model
The study of these models is aimed at uncovering the normative foundations for the protection of language. Should we recognize language rights? Are language rights human rights? Is it speakers or languages themselves that should attract protection? What are the concrete policy implications of protecting language? What are the most effective legal mechanisms for providing protection? Debates concerning language provide for a case study in a range of cutting edge issues in human rights law.
3 Credits. Evaluation: Class Participation (20%); Final Paper (4,000 words) (80%).
The Rule of Law Under Globalisation
Cian Murphy, The Dickson Poon School of Law, King's College London
The rule of law is an "essentially contested concept" that has, nonetheless, been described as an "unqualified human good". The concept has been the subject of much elaboration and critique - both in contemporary legal scholarship as well as political discourses. Today's world requires an historical, comparative, and international perspective on the concept itself and on its impact. This course, thus, examines the rule of law under globalisation from three perspectives: legal doctrine and philosophy; contemporary governance; and, a praxis perspective using case studies.
First, as a legal principle, the rule of law has grown in acceptance across the globe, even though it is often, perhaps due to parochial pride, seen as an emanation of English jurisprudence flowing from the Magna Carta, 800 years ago. Even within Europe there are other conceptions of the idea: the German Rechtsstaat and the French état de droit are but two examples. The debate on the rule of law as a legal principle now crosses common- and civil-law systems and occurs also in religious systems of law such as Sharia. This first perspective on the rule of law will therefore explore the concept, in both historical and contemporary scholarship, in different legal systems from around the world.
Second, in contemporary governance, the rule of law is largely accepted as an aspirational ideal and yet there remains debate over its foundations and content. As a result, the rule of law's claim to neutrality sits uneasily with visions of social and economic justice, on both a local and a global scale. Nevertheless, the rule of law's potential as a guarantor of political stability, economic growth, and even democracy, has put it in the vanguard of international aid and development programs. The second perspective therefore requires us to study the rule of law in global context and, in particular, examine the relationship between governance and the rule of law - especially in post-conflict or transitional states.
Third, in the practice of law, the rule of law is subject to invocation in a world that international lawyers have come to describe as increasingly fragmented and decentralized. The emergence of regulatory regimes, for example in environmental protection, food security, finance, aviation and product safety, challenges the idea of sovereign states as the foundation for an international rule of law. To understand legal practice in this transnational regulatory field requires us to address process as well as the substance of rules; their function and not just their content. The third perspective will thus provide an opportunity for students to engage with specific case studies in more detail, to develop a better understanding of how the increasing globalization of rules of law raises problems for legal certainty through conflicts of law and poses questions of transnational legality in novel forms of norm creation, rule administration and dispute resolution.
2 Credits. Evaluation: Class Participation (25%); Reaction Paper (25%); Final take-home exam (8 hours) (50%).
Transnational Environmental Law
Julián López-Murcia, Pontificia Universidad Javeriana
This course analyses some of the central themes impacting on transnational environmental regulation. The first part is an introductory section that examines the theories of regulation, regulatory strategies (e.g. emission trading), regulation and development, and multi-level regulation. The second part examines the global and international regulation, the main challenges of the international environmental negotiations (particularly regarding climate change), the role of both science and ethics in environmental regulation, and environmental justice.
2 Credits. Evaluation: Class Participation (20%); Final Paper of 3,500 words (80%).
Transnational Securities Law
Ann O'Connell, University of Melbourne
Marcel Peeters, University of Amsterdam
Traditionally, shares and bonds were held and traded as certificates. Modern securities, however, are dematerialized or immobilized and investors' rights with respect to such securities are represented by book-entries. Most book-entry securities are held through chains of intermediaries and these chains often cross borders because of the globalization of finance. This course will consider the various legal issues that may arise in relation to intermediated securities within the transnational framework provided by the 2009 UNIDROIT Convention on Substantive Rules for Intermediated Securities and the 2006 Hague Convention on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary.
Derivatives law is to a large extent harmonized through the use of standardized contract documentation, which may be viewed as a financial lex mercatoria. Two important elements of this transnational system of private law are close-out netting and collateralization. The course will analyze these legal techniques with reference to the 2013 UNIDROIT Principles on the Operation of Close-Out Netting Provisions and to Chapter V, 'Special provisions in relation to collateral transactions', of the 2009 UNIDROIT Convention.
Securities and derivatives infrastructures, such as central securities depositories and clearinghouses, are increasingly subject to regulation and supervision, as reflected, for example, in the 2012 CPSS/IOSCO Principles for Financial Markets Infrastructures. These developments will also be considered during the course.
3 Credits. Evaluation: Class Participation and In-Class Exercises (30%); In-Class Exam (70%).