Spring 2015 - Elective Courses
Comparative Criminal Law: Sanctions, Criminal and Other
Marcel Niggli, University of Fribourg
Serena Quattrocolo, University of Torino
The course offers an introduction to Comparative Criminal Law. Differences between Civil and Common Law systems shall be analysed with regard to two specific, but interconnected phenomena: First, the ever increasing use of sanc-tions in matters of administrative law. Frequently, these sanctions are qualified as different from criminal ones and called "quasi-criminal", "penumbral" or "not strictly belonging to the traditional category of criminal law". Most matters tradi-tionally belonging to realm of administrative law (competition law; tax law, traffic offences etc.) can serve as examples. This process, sometimes called "Over-Criminalization" or "Over-Enforcement" seems to emerge in most legal systems. Interconnected with this phenomenon is the second one: In most criminal justice systems, the prosecution (or its functional equivalent) becomes more and more central to criminal procedure. Both phenomena present problems of their own, but the combination of the two brings woe: In such para-administrative proceed-ings the defendant is mostly obliged to cooperate. However, later on, the infor-mation gathered in the preliminary (administrative) proceedings will eventually be used to indict the very same defendant in the subsequent criminal proceed-ings. Recently, the ECtHR decision in the case of Grande Stevens v. Italy, 4.3.2014 (but, see, previously Zolotukhin v. Russia, 10.2.2009) demonstrate the problem of these situations (ne bis in idem).
These two aspects will be analyzed both from material and procedural points of view, in order to give the students a comparative approach, clarifying similari-ties and differences between Common Law and Civil Law Criminal systems.
3 Credits. Evaluation: Class Participation (30%); Final take-home exam (8 hours) (70%).
Comparative Law: Theory and Practice
Celia Fassberg, Hebrew University of Jerusalem
Helena Whalen-Bridge, National University of Singapore
This course will serve as an introduction to comparative legal systems. It will provide a basic theoretical introduction to the structure of different models of legal systems and the way in which they function, as well as consider the implications of these differences in the world of legal practice particularly in the area of advocacy. The theoretical introduction will deal with differences between models characteristic of common law systems, civil law systems and mixed legal systems, as well as perhaps religious legal systems, touching on the following issues: the structure of dispute resolution systems (courts); civil and criminal procedure; training of judges and lawyers; formal and historical sources of law; and style of legal thinking. Practical application of these ideas will include exploration of lay and legal decision makers, adversarial and inquisitorial orientation, the effect of procedure on advocacy, and comparative legal argument.
2 Credits. Evaluation: Class Participation and pre-assigned in-class exercises throughout the semeter (25%); Final take-home exam (8 hours) (75%).
For 1 extra credit, students who need to fulfill a graduation requirement at their home university may write a major research paper instead of taking the examination. To obtain the extra credit, the student must (a) turn in a written outline of the paper for faculty comment relatively early in the semester, (b) turn in a complete first draft for faculty comment two-thirds of the way through the semester, and (c) write a paper of 6,000 words, not including footnotes.
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.
The seminar component of this course will include two days of intensive instruction during the first four weeks of the semester. Therefore, students need to contact Professor Murphy before making any travel bookings or other plans that might prevent them from attending these intensive instruction days, attendance at which is mandatory to completing the course. There can be no exceptions made to this policy.
Limited to 10 students. Please note that under UK visa regulations, non-EU citizens will need to apply for a Tier 4 visa to be able to do the practicum.
Students should submit an up to date curriculum vitae as well as a personal statement of not more than 750 words setting out their expression of interest in this practicum course and what knowledge, if any, they have of either European lega system to Professor Cian Murphy: firstname.lastname@example.org by November 3, 2014.
European Human Rights System
Serena Quattrocolo, University of Torino
First and foremost under the initiative of the Council of Europe - the international organization established after World War II, having today 47 Member States - Europe has developed a very sofisticated system of protection of fundamental Rights. The European Convention on Human Rights, signed in Rome in 1950, with the current 15 additional protocols (the sixteenth was opened to signatures on Fall 2013), set up one of the most efficient tools to affirm and to control the respect of human Rights. First of all, The Charter and the Protocols, having the same binding value, established a wide range of guarantees and Rights that all the MS must respect: the standard provided by the Convention is intended as a minimum level and all MS are free to protect rights further or to provide for a higher protection. Secondly, Art. 19 of the ECHR set up the European Court of Human Rights as a judiciary body intended to control the actual respect of the Convention by the MS. Every person, both national or not, feeling that one of his fundamental Rights, provided under the ECHR was breached by the action of a State authority, may submit an Application to the ECtHR. In case the Court finds that there was a violation of the Convention, the domestic Government has the duty, under Artt. 41 and 46, to set out individual measures to grant the restitutio in integrum of the applicant or, if not possible or suitable, to pay a certain amount of money, as a remedy to the breach. The Commettee of Ministers of the Council of Europe will supervise the execution of the ECtHR decisions and, as a result, the MS could also be excluded from the Council of Europe.
A further element of affirmation and of protection of fundamental Rights was introduced ten years ago. The EU Charter of Fundamental Rights, adopted in Nice as an embryonic European Constitution, has now the same value of the EU Treaties and relates expressly to the ECHR values. Since the Lisbon Treaty entered into force, some of those fundamental Rights safeguarded by both the ECHR and by the EU Charter have been the object of a EU legislative intervention by mean of directives. Fundamental Rights of individual in Criminal proceedings are now the object of a double protection: both by ECHR and by the decisions of ECtHR, and by the EU legislation, which will be implemented, as a duty, by the MS and will be interpretated by the European Court of Justice.
As a further step, negotiations to let EU became a party to the ECHR is currently at a very advanced point, so that in the next future, ECHR and EU will grant and truly integrated system of protection of fundamental Rights.
2 Credits. Evaluation: Class Participation (30%); Final Paper (3,500 words, excluded footnotes and bibliography) (70%).
International Trade Law
Alvaro Santos, Georgetown Law
This course will examine the international trading system and focus primarily on the law and policy of the World Trade Organization (WTO). We will consider the theoretical foundations of free trade and the international trade regime, its current institutional and legal architecture, and its economic and social effects.
The course will examine the basic mechanisms enabling trade liberalization including the principles of non-discrimination and the regulation on tariffs, quotas and subsidies. We will explore the relationship between WTO rules and domestic regulation, analyzing how the WTO has managed the tensions between trade liberalization and other values concerning the environment, health and safety, workers' welfare, human rights and consumer choice. We will analyze several areas of economic liberalization beyond goods, including services, intellectual property, and investment. Throughout the course, we will evaluate whether WTO constraints on countries' policy autonomy hinder their ability to pursue successful development strategies, particularly in light of the experience of emerging countries like China, India, and Brazil.
Finally, we will explore the WTO's interaction with regional trade regimes, like the North American Free Trade Agreement (NAFTA), and discuss what the potential emergence of new regional trading blocks like the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP) would mean for global economic governance.
3 Credits. Evaluation: Class Participation (20%); Reaction Papers (20%), Final take-home exam (8 hours) (60%).
Legal Argument and Narrative
Helena Whalen-Bridge, National University of Singapore
Narrative plays a particularly prominent role in litigation, but it also appears in legal documents such as contracts. Why is it that narrative is central to litigation, or human understanding? This legal skills course analyzes the pervasive reach of narrative particularly in the common law, examines why narrative is such an effective tool of legal persuasion, and explores advanced techniques of narrative in fact construction. First we will address more theoretical examinations of narrative in the law, and then we will develop advanced argumentative techniques to select and organize a persuasive presentation of facts.
3 Credits. Evaluation: Class Participation (20%); Fact Evaluation Assignment (30%); Fact Construction Assignment (50%).
Legal Ethics and Professionalism
César Arjona, ESADE Law School
By analysing the ethical dilemmas in the intersection between law, business and professionalism, the main goal of this course is to allow its participants to better understand their social responsibility as professionals. This understanding may be complex, sophisticated and even troubling, and for that reason the course is addressed to advanced students, who can reflect both on their acquired legal knowledge and on their future professional careers.
The course will be divided in two parts. In the first part, Ethics, Philosophy and Law, we will consider the foundations of Western moral theory, distinguish general ethics from professional ethics, and review the main theoretical models that have been advanced in order to justify the role of private lawyers. In the second part, Law, Business and the Professions, we will consider practical contemporary problems of legal ethics, with an emphasis on lawyers working in the business world and interacting with other professionals.
We will use the Socratic method, meaning that the class will be mostly structured as a dialogue based on the assignments for each session. Active participation on the part of the students is a crucial element in the course: since ethical sensibilities towards the profession are culturally relative, it is expected that the transnational nature of the class will enrichen the discussion through student participation. Besides more traditional materials, such as articles and cases, we will also make extensive use of films, including three documentaries on which students will have to write reaction papers.
2 Credits. Evaluation: Class Participation (25%); Reaction Papers (25%); Final take-home exam (8 hours) (50%).
Private International Law - Conflicts of Law
Celia Fassberg, Hebrew University of Jerusalem
Commercial and family legal relations often involve people from different legal systems and events that occur in different places. Litigating such matters can be complicated by three different types of questions: Where can one sue? Which law will be applied to decide the case? What can one do in one country with a judgment obtained in another? These are all questions of Private International Law or the Conflict of Laws. There are no binding international rules on these matters. Some regional agreements have created common rules of private international law for the systems in the region, and some international conventions have been formulated to address these questions. Nonetheless, generally speaking, every legal system has its own rules determining when it has jurisdiction, which law it will apply (choice of law) and how it will treat foreign judgments. This course will provide an introduction to some of the typical problems of jurisdiction, choice of law and foreign judgments' law in commercial and family law matters. We will use both international conventions European Regulations as the basis for the discussion and complement them by reference to national rules from both European and other countries.
3 Credits. Evaluation: Class Participation (25%); Final Take-Home Exam (8 hours) (75%).
Research Lab on Transnational Law
César Arjona, ESADE Law School
This course is devised as an advanced research seminar. It is particularly addressed to students who are willing to pursue a full-time or a part-time career on the fields of research or academia. The course is also addressed to students who are interested in doing research in a particular field of their choice and who are willing to engage in a substantial writing project.
The goal of the course is to write a publishable paper, that is, a paper susceptible of publication in an academic journal. The drafting process will go through four different stages: proposal, outline, first draft and final draft. The paper will be approximately 8,000 words (although a different extension can be agreed on a case by case basis). There will be intensive supervision by the professor, and participants will present their research at different stages in front of the whole class and will comment on each other's work. The topic of the paper must fall within the very broad category of transnational legal theory, and it can include:
- theoretical approaches to the nature, structure and organisation of transnational law, its communication, application, pedagogical aspects, and so on;
- interdisciplinary approaches to transnational law, using perspectives from economics, politics, sociology, anthropology or other fields of knowledge;
- and doctrinal papers on specific aspects of transnational law, private and public, as long as they have relevant connections with the more general aspects of law in the age of globalization.
Class meetings will be of three sorts:
- lectures. There will be a few lectures on the methodology of scientific research, especially applied to the legal science.
- common reviews. In these sessions students will present in
front of the class their research at different stages (proposal, outline
and first draft), and will comment on each other's work. Participants
are expected to make public their work on TWEN for the other
participants to comment on it both orally and in written form.
- individual interviews. During the remaining sessions, the professor will conduct one-to-one interviews with the students in order to supervise their research process. If necessary, further interviews can take place outside class-time.
2 Credits. Evaluation: Class Participation (20%); Final Paper (8,000 words) (80%) (the process of arriving at the final draft will be assessed as part of the evaluation).
Limited to 6 students.
Rule of Law and International Relations
Marcel Niggli, University of Fribourgo
The rule of law faces increasing pressure in recent years. Of course, developments in international conflicts come to mind (Kosovo, Afghanistan, Iraq, Libya, Syria, and most recently Crimea and the Ukraine), but they present only a very small and the most obvious part of the problem. More important, probably, have been the international reaction to terrorism and the focus on security which seem to literally have eroded long-standing principles of law: We could mention the notion of "illegal or unlawful combatant", legally dubious prisons and procedures, controversial definitions (e.g. torture) or the lack of definitions (e.g. for "terrorist" or "extremist"). Consequences, however, can be serious (e.g. no-fly-lists; killings by way of drones). The same fuzziness can also be found in other realms, most prominently perhaps that of fiscal interests: Some states officially declare their willingness to buy information procured through criminal acts, others demand information that can not be handed over without violation of legal provisions or even committing crimes.
The course will present and discuss different conceptions and meanings of "rule of law" as well as law's relationship to economy and politics, especially in international relations. How do we distinguish law from politics and economics and how do we protect it from them? And does the law need protection at all?
2 credits. Evaluation: Class Participation (including presentations and reaction papers) (30%); Final Paper (4,000 word limit) (70%).
Theories of Constitutional Law
Alon Harel, Hebrew University of Jerusalem
The course examines the justification for a constitution and for judicial review. In particular it examines when constitutions are legitimate and under what conditions they justifiably constrain the power of the majority. Among other theorists we explore Carl Schmitt and his skepticism concerning liberal theory. We also explore various instrumental theories of constitutional law including in particular Ronald Dworkin, Bruce Ackerman, John Ely and Alexander & Schauer. We end the course by challenging instrumentalism and argue for the intrinsic value of constitutions.
3 Credits. Evaluation: Class Participation (20%); Mid-term Paper (1,000 words) (10%); Final Paper (5,000 words maximum) (70%).