Despite the high-flown rhetoric of civil society, it cannot be denied that discrimination is still with us; it has merely gone "underground". In the European project, and particularly in the etiology of the EC Treaty's commitment to the free movement of persons, defenders of national sovereignty are often also defenders of inequality.;This text offers a fresh approach to this all-important issue that exposes, in rigorous and well-informed detail, a polity that defines discrimination correctly but then refuses to see it where it occurs. It approaches the law of free movement from a point of view that is regrettably uncommon: neither that of market integration, nor that of Member State sovereignty within the Union, but that of the individual dignity subsumed in the state-citizen relationship.;Focusing on the relevant caselaw of the European Court of Justice, the author shows that the law of cross-border movement in Europe can - and should - be guided by the principle of non-discrimination; and that, despite inconsistencies in its judgments, and a tendency to retreat to the neutral language of economics, the Court is "haunted" by the discriminatory principles inherent in formalistic European legal systems. Its jurisprudence will ultimately restructure them to impose respect for difference and equality before the law.

By the end of British rule in Palestine on 14 May 1948, Palestinian nationality had become well established in accordance with both domestic law and international law. Accordingly, the legal origin of Palestinian nationality lies in this nearly thirty-year period as the status of Palestinians has never been settled since. Hence, any legal consideration on the future status of individuals who once held Palestinian nationality should start from the point at which the British rule over Palestine was terminated. This work provides a legal basis for future settlement of the status of Palestinians of all categories that emerged in some sixty years following the end of the Palestine Mandate: Israeli citizens, inhabitants of the occupied territory, and Palestinian refugees. In conclusion, nationality as regulated by Britain in Palestine represents an international status that cannot be legally altered except in accordance with international law.

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aFinally, an unflinching response to immigration alarmists! This brilliant, challenging book outlines an immigration proposal based on the reality that migration flows are not regulated by border enforcement but by social, economic, and political pressures.a
--Mary Romero, author of "Maid in the USA"

Seeking to re-imagine the meaning and significance of the international border, Opening the Floodgates makes a case for eliminating the border as a legal construct that impedes the movement of people into this country.

Open migration policies deserve fuller analysis, particularly on the eve of a presidential election. Kevin R. Johnson offers an alternative vision of how U.S. borders might be reconfigured, grounded in moral, economic, and policy arguments for open borders. Importantly, liberalizing migration through an open borders policy would recognize that the enforcement of closed borders cannot stifle the strong, perhaps irresistible, economic, social, and political pressures that fuel international migration.

Controversially, Johnson suggests that open borders are entirely consistent with efforts to prevent terrorism that have dominated immigration enforcement since the events of September 11, 2001. More liberal migration, he suggests, would allow for full attention to be paid to the true dangers to public safety and national security.

In the first interdisciplinary work focused on the European Ombudsman, expert observers of EU institutional affairs provide a thorough evaluation of the Ombudsman and its constitutional role, powers, activities and future potential. The book addresses the Ombudsman's impact on accountability in the EU's executive branch and offers new suggestions for the further development of the practice of 'ombuds review'. The contributions to the discussion within this book come from law, political science, administrative science and economics. Looking at comparative developments in EU law and policy they critically review, from a variety of perspectives and methodologies, the Ombudsman's role in the review of activity of EU institutions, bodies, offices and agencies. They then evaluate this role, and its achievements, against the original objectives for creating an Ombudsman some 20 years ago. This timely book will appeal to scholars and advanced students of the EU political and legal system. It is a also must-read for policy advisors and practitioners looking to enhance their understanding of alternative modes of dispute settlement and anyone interested in the future of administration in the EU. Contributors include: P.N. Diamandouros, D. Dragos, I. Harden, H.C.H. Hofmann, R. Mastroianni, J. Mendes, B. Neamtu, C. Neuhold, G. Tridimas, T. Tridimas, J. Trondal, A. Wille, J. Ziller

Legal reasoning, pronouncements of judgment, the design and implementation of statutes, and even constitution-making and discourse all depend on timing. This compelling study examines the diverse interactions between law and time, and provides important perspectives on how law's architecture can be understood through time. The book reconsiders older work on legal transitions and breaks new ground on timing rules, especially with respect to how judges, legislators and regulators use time as a tool when devising new rules. At its core, The Timing of Lawmaking goes directly to the heart of the most basic of legal debates: when should we respect the past, and when should we make a clean break for the future? This unique resource draws on examples from administrative law, banking law, budget law, constitutional law, criminal law, environmental law, inheritance law, national security law, tax law, and tort law, and will be of interest to academics studying law, political science and economics, as well as to policymakers, legislators, and judges. Contributors include: E. Alston, F. Fagan, D.A. Farber, J.E. Gersen, T. Ginsburg, D. Kamin, S. Levmore, A. Niblett, M.C. Nussbaum, E.A. Posner, J.M. Ramseyer, A.M. Samaha, D. Shaviro, J. Suk

This volume traces the developments in the laws and practices of the European Union and five of its Member States (the United Kingdom, Germany, France, the Netherlands, and Italy) at two points in time: first at the time of the Gulf War following Iraq's invasion of Kuwait in August 2000; secondly, following the terrorist attacks in the United States on 11 September 2001. The focus is on the legal status of immigrants and asylum seekers and how that legal status is being modified on grounds of security-related measures adopted over a period of about ten years. Particularly, the question is whether and how far situations have come into existence, which could be considered to be in conflict with fundamental principles of human rights.

The 1866 Civil Rights Act is one of the most monumental pieces of legislation in American history, figuring into almost every subsequent piece of legislation dealing with civil rights for the next century. While numerous scholars have looked at it in the larger social and political context of Reconstruction and its relationship with the Fourteenth Amendment, this will be the first book that focuses on its central role in the long history of civil rights. As George Rutherglen argues, the Act has structured debates and controversies about civil rights up to the present. The history of the Act itself speaks to the fundamental issues that continue to surround civil rights law: the contested meaning of racial equality; the distinction between public and private action; the division of power between the states and the federal government; and the role of the Supreme Court and Congress in implementing constitutional principles. Slavery, Freedom, and Civil Rights shows that the Act was not just an archetypal piece of Radical Republican legislation or merely a precursor to the Fourteenth Amendment. While its enactment led directly to passage of the amendment, their simultaneous existence going forward initiated a longstanding debate over the relationship between the two, and by proxy the Courts and Congress. How extensive was the Act's reach in relation to the Amendment? Could it regulate private discrimination? Supersede state law? What power did it endow to Congress, as opposed to the Courts? The debate spawned an important body of judicial doctrine dealing with almost all of the major issues in civil rights, and this book positions both the Act and its legacy in a broad historical canvas.

This book brings together past and present law commissioners, judges, practitioners, academics and law reformers to analyse the past, present and future of the Law Commissions in the United Kingdom and beyond. Its internationally recognised authors bring a wealth of experience and insight into how and why law reform does and should take place, covering statutory and non-statutory reform from national and international perspectives. The chapters of the book developed from papers given at a conference to mark the fiftieth anniversary of the Law Commissions Act 1965.

The enlargement of the EU has highlighted the challenges of compliance, but it has also helped to suggest new compliance methodologies. The combination of methodologies used by the EU and the differing levels of enforcement available are characteristic of the EU's compliance system, permitting the remarkable reach and penetration of EU norms into national systems. In this new study six authors offer their assessment of the enforcement procedures and compliance processes that have been developed to ensure Member State compliance with EU law. The first three chapters examine the merits of combing both coercive and problem-solving strategies, describing the systems in place and focusing on the different levels at which compliance mechanisms operate: national, regional, and international. It also looks at horizontal compliance as well as 'from above' compliance, creating a complex and rich picture of the EU's system.
The final three chapters of the book focus on different aspects of compliance seen from a national perspective. The first analyzes the two bases for the use of criminal sanctions to enforce EU law: the ability of Member States to choose to include criminal penalties for non-compliance in their national law; and the imposition of criminal sanctions at a national level by EU law itself. The book then moves on to a discussion of the role of national courts in ensuring Member State compliance with, and enforcement of, EU law. It examines the role of national constitutional courts in facilitating compliance with EU law and draws comparisons between EU law and international law and their interactions both with each other and with national constitutional courts.

aThe uniquely American sense of freedom that makes the First Amendment so beloved and so respected in its homeland is precisely what makes it a difficult model for constitutional protection of expression in other political systems. In this survey of free speech policies in Canada, Germany, Japan, and the United Kingdom, Krotosyznski introduces American students and scholars of constitutional law to a diverse range of culturally contingent approaches to protecting the freedom of expression in other industrialized countries. . . . As Krotosyznskias fascinating project demonstrates, comparative constitutional analysis challenges us as Americans to examine critically the cultural assumptions underlying our legal system.a
--Jim Chen, University of Minnesota Law School

"There are very few scholars who are willing to read as widely in the law of the world as Krotoszynski, and very few who are capable of forming such confident and intelligent judgments."
--James Whitman, Yale Law School

"For better or worse recent Supreme Court jurisprudence evidences a growing struggle over whether and, if so, how to address foreign court decisions. Ronald Krotoszynski's first-rate analysis of the comparative dimension of free speech issues could not be more timely. Not only does his work shed important light on free speech, but it informs as well."
--Michael Heise, Cornell Law School

"Krotoszynski has produced one of the best examples of the growing literature on comparative public law. His analysis of free speech law in four modern democracies is distinctive in that it goes beyond merely describing the rules governing expression in those countries to address the deeper differences incultural attitudes that explain the disparate legal outcomes. His sophisticated treatment of the intersecting lines of theory, doctrine, and culture makes this the most thorough and compelling assessment of comparative free speech law on the market today."
--Steven G. Gey, David and Deborah Fonvielle & Donald and Janet Hinkle Professor of Law, Florida State University College of Law

Krotoszynskias conclusions are revealing and forcefully presented. This is especially so when they are based on the authoras sophisticated and copiously documented comparison of the US with four advanced legal systems committed to participatory politics. The book undoubtedly challenges many of us who smugly accept American aexceptionalisma in freedom of speech and the press...Krotoszynski helps us appreciate the value of comparative free speech with a new, penetrating perspective.a
--"The Law and Politics Book Review"

The First Amendment --and its guarantee of free speech for all Americans--has been at the center of scholarly and public debate since the birth of the Constitution, and the fervor in which intellectuals, politicians, and ordinary citizens approach the topic shows no sign of abating as the legal boundaries and definitions of free speech are continually evolving and facing new challenges. Such discussions have generally remained within the boundaries of the U.S. Constitution and its American context, but consideration of free speech in other industrial democracies can offer valuable insights into the relationship between free speech and democracy on a larger and more global scale, thereby shedding new light on some unexamined (and untested) assumptions that underlie U.S. free speechdoctrine.

Ronald Krotoszynski compares the First Amendment with free speech law in Japan, Canada, Germany, and the United Kingdom--countries that are all considered modern democracies but have radically different understandings of what constitutes free speech. Challenging the popular--and largely American--assertion that free speech is inherently necessary for democracy to thrive, Krotoszynski contends that it is very difficult to speak of free speech in universalist terms when the concept is examined from a framework of comparative law that takes cultural difference into full account.

Examining the role of the Intergovernmental Conference (IGC) in the development of the European Union (EU) and the evolution of the EU treaties, this book focuses on the negotiations of what are termed the eight constitutional IGCs. These eight include the negotiations of the 1950s and 1960s on: 1) the European Coal and Steel Community, 2) the European Defence and Political Community, 3) the European Economic Community and European Atomic Energy Community, and 4) the Fouchet Plan. The book also examines the more recent constitutional IGCs on: 1) the Single European Act, 2) the Maastricht Treaty, 3) the Amsterdam Treaty, and 4) the Nice Treaty. This book challenges the neofunctionalist and liberal intergovernmentalist perspectives that have been used in the past to explain the process of IGCs. The author presents an alternative perspective in the form of an incremental model to explain the nature of negotiations at all eight constitutional IGCs. It is also argued that the increasing frequency of IGC negotiations signifies a gradual institutionalisation of the process to the point where the constitutional IGC is becoming a regular feature on the EU's political landscape. Governments are locked into a process of constitutional IGCs that leaves the primary legal document of the EU in a state of perpetual reform. In turn, it is argued that the incrementalism that defines the IGC negotiations shapes the entire process of European integration and the general nature of the European Union.

Constitutional 'losers' represent a thorny and longstanding problem in American constitutional law. Given our adversarial system, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically suffer unnecessary harm as a consequence of decisions. In areas such as affirmative action and gay rights, the losers are essentially punished for losing despite neither intending nor causing injury.
In Losing Twice, Emily Calhoun draws upon conflict resolution theory, political theory, and Habermasian discourse theory to argue that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers. But for this to happen, Calhoun contends, the role of judges needs to be reconceptualized. She contends that the Court should not perceive itself simply as an adversarial forum, but also as a 'transactional' one, where losers are not simply losers but participants in a process capable of addressing and ameliorating the effects that come with loss. Filled with lucid discussions of well known cases, Losing Twice offers an intellectually powerful argument for transforming the decision-making process in Constitutional rights disputes.

The essays which appear in this volume have been written to pay tribute to the Hon Mr Justice Nial Fennelly, judge of the Supreme Court of Ireland and former Advocate General at the European Court of Justice, on the occasion of his retirement. The overall theme of the book is the relationship between European Union law and national law, and the role of courts in defining that relationship. The book consists of four main parts - the structure and functioning of the European Court of Justice, material issues of European Union law, aspects of Irish law and transversal issues of national and European law. The contributors are all past and present members of the European bench, members or former members of the Irish judiciary or Bar and/or experts in European Union law, many of whom have worked with Mr Justice Fennelly during his long and distinguished career at the Bar and on the bench.

The exceptionality of America's Supreme Court has long been conventional wisdom. But the U.S. Supreme Court is no longer the only one changing the landscape of public rights and values. Over the past thirty years, the European Court of Human Rights has developed an ambitious, American-style body of law. Unheralded by the mass press, this obscure tribunal in Strasbourg, France, has become, in many ways, the Supreme Court of Europe. Michael D. Goldhaber introduces American audiences to the judicial arm of the Council of Europe - a group distinct from the European Union, and much larger - whose mission is centered on interpreting the European Convention on Human Rights. The council routinely confronts nations over their most culturally sensitive, hot-button issues. It has stared down France on the issue of Muslim immigration, Ireland on abortion, Greece on Greek Orthodoxy, Turkey on Kurdish separatism, Austria on Nazism, and Britain on gay rights and corporal punishment. And what is most extraordinary is that nations commonly comply. In the battle for the world's conscience, Goldhaber shows how the court in Strasbourg may be pulling ahead.

In this edited volume, an array of scholars has examined recent policymaking efforts in selected areas of contemporary importance. Government at Work: Policymaking in the Twenty-First Century Congress provides chapter-length treatment to reveal the similarities and fundamentals of policy development while also illustrating the unique issues and obstacles found in each policy environment. This book's scope spans the entire policymaking process, exposing the readers to the interaction among all major power centers, ranging from interest groups, media, courts, Congress, the president, and the federal bureaucracy. It shows the dynamic nature of American policymaking system. The approach employed in this book treats events, such as Congress passing a law or the Supreme Court announcing a ruling, as important steps in the policy process rather than as merely ends unto themselves. This volume focuses on major legislation passed by Congress since the turn of the century. It features one case study per chapter, demonstrating how issues rise to the national agenda, pass through the congressional labyrinth to become public policies, are implemented by the federal bureaucracy, receive feedback from affected elements of the society, and ultimately evolve over the years.

This book brings together contributions from some of the leading authorities in the field of EU immigration and asylum law to reflect upon developments since the Amsterdam Treaty and, particularly, the Tampere European Council in 1999. At Tampere, Heads of State and Government met to set guidelines for the implementation of the powers and competences introduced by the Amsterdam Treaty and make the development of the Union as an area of freedom, security and justice a reality. Since 1999, a substantial body of law and policy has developed, but the process has been lengthy and the results open to critique. This book presents a series of analyses of and reflections on the major legal instruments and policy themes, with the underlying question, to what extent the ideals held out of 'freedom, security and justice accessible to all', are in fact reflected in these legislative and policy developments. Has freedom from terrorism and the spectre of illegal or irregular migration, and increasingly strict border securitisation and surveillance overshadowed the freedom of the migrant to seek entry or residence for legitimate touristic, work, study, or family reasons, a secure refuge from persecution, and effective access to justice? In 2004, the Heads of State and Government presented a programme for the next stage of development in these areas, the Hague Programme, and the Directives and Regulations that have been agreed are now being transposed and applied in Member States legal systems. What are the main challenges in the years ahead as the Hague Programme and the existing legislative acquis are implemented?