An Introduction to the Law of the EU Internal Market
Luca Rubini, University of Torino

The goal of this module is to introduce students to the law of the most successful single market in the world. This will be done in two steps.

Part I of the module will provide an introduction to the key tenets of the EU internal market. After a brief introduction of the goals of EU integration and of its constitutional structure, with a special emphasis given to the twin principles of direct effect and supremacy, the module will focus on the key tenets of the EU internal market. Topics covered will include the initial creation of a customs union (completed by 1968) and the progressive creation of a true common and internal market. This will  include the analysis of the four economic freedoms (goods, services, capital, labour), of the concept of citizenship, and of the harmonising powers of the EU.

Building on the knowledge of Part I, Part II will be devoted to a critical understanding of some of the current challenges of the EU internal market (such as competitiveness concerns, climate change, energy security) which, somewhat paradoxically, often involve the “external side” of this market.

The teaching will be based on the analysis of primary sources (treaty text, secondary legislation, case-law) as well as selected literature. Rather than aiming at comprehensiveness, the module aims at nurturing a critical understanding of some of the key issues.

2 Credits. Evaluation: Attendance and class participation (10%), Final research paper (4,000 words) (90%).

ONE-PLUS OPTION:

For 1 extra credit, a limited number of students who need to fulfill a graduation requirement at their home university may write a major research paper. 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.

Please note that this course has been approved as a WR course for Georgetown students.

Insurance Law
Özlem Gürses, King’s College London

London insurers insure risks not only in the UK but abroad. Insurance may be obtained from London for, eg, hurricanes in the USA, bush fires in California, oil and gas operations in Asia or Africa of in the Middle East, or cargoes transported between different continents. Moreover, the London insurers support overseas local insurers through ‘reinsurance’, namely insurance of insurance companies. Where, for instance, only local insurers are allowed to insure local risks, reinsurance enables them to expand their business capacity and insure risks which otherwise they would not be able to undertake.

Unlike many other legal areas, English insurance law has influenced over centuries the principles of insurance in several different parts of the World including the Commonwealth countries, the USA, and Europe. It is not therefore surprising that in a code-based legal system, in order to determine, for instance, the test applicable to find out what caused the insured loss, guidance may be sought from English law – as the most detailed guidance is to be found there.

London insurance market is also the leading market in transport and especially marine insurance. Transnational transactions are often insured by London insurers who select English law as the applicable law to the contract.

The fundamental principles of insurance law will not change dramatically from one legal system to another. In every jurisdiction some certain types of insurance will be compulsory (eg motor vehicle compulsory liability insurance), every insurance will be subject to the duty of fair presentation of the risk, when insurer compensates the assured the insurer will subrogate into the assured’s rights towards another who is liable for the loss. Some details in the application of these fundamental principles may vary from jurisdiction to jurisdiction, but the main principles, their meaning and purpose and how they operate are similar.

This course aims to teach the general principles of insurance law and how they apply to different types of insurance covers. How an insurance contract is formed in the London market, how overseas brokers are involved in the contract formation process, whether overseas or local, what duties insurance brokers owe to their clients, how the regulators in different jurisdictions try to find balance between the assured and the insurer, the rules determine what caused the insured loss, definition of insured and excluded risks and the impact of the assured’s failure to comply with the contractual duties to the insurance cover are the main topics to be included in the course programme. Whilst mainly English law will be our guidance to learn these concepts, examples will be provided from other jurisdictions, eg in Germany and USA (a few selected States). Finally, artificial intelligence is widely employed by insurers in the contract formation and claim settlement stages. The course will conclude with an overview of InsurTech and the ways that they have transformed the day to day operation of insurance businesses Worldwide.

2 Credits. Evaluation: Class participation (20%), Final take-home exam (8 hours) (2,500 words) (80%).

International Human Rights Law
Yuval Shany, Hebrew University of Jerusalem

The course proceeds in three segments. The first segment introduces the idea of human rights from an historical, philosophical, analytical and critical perspective. The focus of this segment is on the development of international human rights law within the UN system and its implications for international law and politics. The second and main segment of the course is devoted to the study of key international human rights notions and concepts and their application in specific human rights instruments and contexts. Among the issues discussed in this segment are right relativism/absolutism, extra-territorial application of human rights, positive/negative obligations, derogations and reservations, interplay between different rights, group rights, digital human rights and the application of human rights at times of war.  The third and last segment of the course explores the right enforcement mechanisms that have been put in place at the global, regional and national levels.

3 Credits. Evaluation: Final take-home exam (8 hours) (100%), Students who actively participate in class discussion in a manner that demonstrate deep familiarity with the assigned reading materials and the class materials, may get a bonus of up to 0.5 points.

International Trade Law and Policy: Post-WWII Evolution and Current Issues
Luca Rubini, University of Torino

Countries have been trading since ancient times. It is, however, only with the twentieth century, with the advent of the General Agreement on Tariffs and Trade (GATT), that countries started to regulate trade multilaterally. Multilateralism as key mode of trade governance incrementally developed till reaching its climax in 1995 with the advent of the World Trade Organization (WTO). Almost simultaneously another form of trade governance started to develop. Outside of the WTO, countries increasingly concluded Preferential Trade Agreements (PTAs) between themselves reaching a point that, at the time of writing, there are more than 300 in force. What could not be done in the WTO, which, due to an increasingly wide and diverse membership, had become almost ungovernable, was done outside and beyond it. More recent times are suggesting new, seismic changes in global governance, including the trade field. Multilateralism is in crisis – the WTO being a key example in point and the death of the Appellate Body as its most vivid symptom. PTAs may have produced the maximum benefits available in terms of increased market access and possibilities of cooperation in beyond-the-border policies. While law reform talk of the existing institutions and rulebooks take place, countries are repositioning themselves. Sovereignty, and self-sufficiency, are once again buzzwords. The same happens for national security and industrial policy. Global Value Chains (GVCs) are subject to re-designing according to “friend-shoring”. Informal fora and clubs blossom. New trade blocks (a new Iron Curtain?) may well emerge out of these cumulative processes.

The present course aims to offer students a contemporary learning of international trade law and policy. The initial part will cover the same ground of classic syllabuses in the field, exploring the rationales for international trade and trade agreements and institutions, analysing the genesis of the GATT and its evolution into the WTO, as well as concentrating on the key norms of the WTO rule-book. Topics will cover dispute settlement, trade in goods (border measures, internal tax and regulation, subsidies, standards) and trade in services. The second part will see a shift of focus from multilateralism to PTAs, to assess their evolution and contents especially vis-à-vis their adding-up (or not) with respect to the WTO standard. A special attention in this regard will be paid to the PTAs concluded by the EU, the most active player in this field. The final part will concentrate on the analysis of the more contemporary trends that see countries increasingly resorting to unilateral measures and informal initiatives. On the basis of their learning, students will be invited to speculate into what the future holds.

2 Credits. Evaluation: Attendance and class participation (10%), Final research paper (4,000 words) (90%).

ONE-PLUS OPTION:

For 1 extra credit, a limited number of students who need to fulfill a graduation requirement at their home university may write a major research paper. 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.

Please note that this course has been approved as a WR course for Georgetown students.

Introduction to International Investment Law
Christophe Bondy and Alexandre Genest, Steptoe & Johnson LLP

The course “Introduction to International Investment Law” seeks to introduce CTLS students to the international investment law regime, one of the most controversial and dynamic areas of Public International Law of the last half-century. International investment is a key source of financing, expertise, business connections and opportunity for most States; but the extent of obligations owed to international investors, and the inherent limitations such obligations place on State sovereignty, have generated intense consideration and controversy in the first two decades of our millennium. To better understand the current state of play, our lectures will retrace the historical origins and evolution of the international investment regime, and the political economy underlying international investment agreements (IIAs). We will examine key obligations contained in IIAs, including protection against uncompensated expropriation, prohibition of discriminatory treatment, and provision for fair and equitable treatment and full protection and security of foreign investors and their investments. In this regard, we will explore apparent conflicts that have arisen since the mid-1990s between the obligations to be upheld by host States vis-à-vis foreign investors and States’ right to regulate in the public interest. We also will consider the IIA dispute resolution process as illustrated by leading procedural and substantive rules systems, reviewing main trends and hot topics; the merits of recent efforts to reform IIAs; and more broadly, the future prospects of international investment law. Through these lectures, students will become familiar with the history and key legal issues arising out of the interpretation of IIAs, the literature surrounding recent attempts at reforming the system, and the main components of investor-State dispute settlement, allowing them to consider calls for and against the protection of international investment from an informed and critical perspective.

2 Credits. Evaluation: Attendance and class participation (30%), Final research paper and its presentation in class (4,000 words) (70%).

ONE-PLUS OPTION:

For 1 extra credit, a limited number of students who need to fulfill a graduation requirement at their home university may write a major research paper. 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.

Please note that this course has been approved as a WR course for Georgetown students.

Legal History: The British Empire and the Emergence of a Transnational Legal Order (1750-1970)
Catharine MacMillan, King’s College London

This course considers the legal history of the British Empire and the emergence of a modern transnational legal order from this empire between 1750 and 1970. The course aims to introduce CTLS students to the laws, legal institutions and governance of the British Empire and, in so doing, provide an understanding of the modern global transnational legal order. The purpose of this course is to gain an understanding of particular themes rather than to consider a chronological development of historical events during this era. Students will gain an understanding, through these themes and also through the study of historiography, something of the methods of legal historians. This process will also work to strengthen critical analytical skills in relation to legal history. Representative seminar topics include the following: Law, Slavery and Abolition; Empire and its Peoples; Empire and the Rule of Law; Legal Education and Empire; What is Legal History a History of?; the Judicial Committee of the Privy Council as an imperial court; and the Modern Development of Commercial Law through Practice. The topics considered in the seminars will provide an understanding of the development of the British Empire and its lasting legacies, from commerce to constitutions to citizens. A central aim of this module is to undertake a critical evaluation of the British Empire to provide modern perspectives on the role of the Empire in shaping the modern world.

Each seminar will have recommended reading upon which the in-class discussion will be based. To supplement this reading, there will be opportunity for students to watch audio-visual materials and listen to podcasts which provide interesting, contextual backgrounds to the subjects considered in these seminars. Students will also be able to draw upon original archival materials, available online, to further inform their understanding of particular topics and also to increase their knowledge of legal history as a discipline. In addition to the traditional seminar based discussion and preparation there will also be the opportunity to explore as a field trip (possibly more, subject to student interest) parts of London as the metropolis of the British Empire and a key city in the modern transnational legal order.

2 Credits. Evaluation: Attendance and class participation (30%), Final research paper (4,000 words) (70%).

The New Frontiers of Antitrust Law – Multinational Firms and Competition
Ittai Paldor, Hebrew University of Jerusalem

The course will focus on the tension, and at times possible contradiction, between core competitive norms in different jurisdictions, a problem that gravely affects multinational firms in the modern business world. The course will propose a solution to the clash between national competition laws.

In the modern economy, firms’ conduct often impacts the competitive landscape of several countries. Numerous regimes may thus have a justified claim for applying their respective competition laws to such firms’ conduct or transactions. At times, this subjects specific conduct or a specific transaction to contradicting, or at least very different, norms.

The course will provide an introductory glossary of fundamental antitrust norms and elaborate on the different views regarding the core goals of competition law. Thereafter, the course will focus on two manifestations of the problem of contradicting norms: civil lawsuits against international cartels, and different thresholds for merger review.

Time permitting, the course will also discuss different jurisdictions’ divergent attitudes towards the leveraging of big businesses’ economic power and its translation into power in other spheres, predominantly the political arena.

3 Credits. Evaluation: Class participation (20%), Final take-home exam (8 hours) (80%).

Transnational Climate Change Law
Jolene Lin, National University of Singapore

Climate change is the biggest threat to humanity’s existence. States, subnational governments, investors, central banks and international organizations, to name a few, have had to rapidly develop regulatory responses to mitigate as well as adapt to climate change. This has given rise to a Cambrian explosion of transnational institutions, standards and programmes – what Kenneth W. Abbott calls the “transnational regime complex for climate change”.

This course provides a comprehensive overview of the transnational climate change regime complex as well as examines the legal and regulatory responses of selected jurisdictions to climate change. The first seminar provides a rapid snapshot of the state of contemporary global climate change and energy politics as well as the latest climate change science. The initial part of the course will examine the transnational regulatory landscape with a focus on the UN Framework Convention on Climate Change, the Paris Agreement, and various sub-state and non-state initiatives to drive decarbonization. The second part of the course examines the laws and regulatory frameworks that have been adopted in the European Union and United Kingdom for climate change mitigation and adaptation. The third part of the course focuses on climate change litigation.

This course is avowedly inter-disciplinary, drawing on insights from economics, international relations, public policy, and the physical sciences. These perspectives are essential to understanding the law and policies governing climate change.

2 Credits. Evaluation: Class participation (20%), In-Class Group Presentation (30%), Research Paper (4,000 words) (50%).

Transnational Environmental Law
Jolene Lin, National University of Singapore

Human pressures on the environment continue to grow, threatening serious irreversible harm to our eco-systems and natural resources. In this context, laws and regulations to protect the environment have grown exponentially. This has led to the development of a rich and still expanding field of law: environmental law. Transnational environmental law can be said to refer to the norms, processes and actors that seek to regulate cross-border environmental phenomena including climate change and plastics pollution. The ‘transnational’ seeks to transcend the rigid binary division of law into ‘domestic’ and ‘international’. Transnational environmental law therefore acknowledges the multi-actor, multi-level aspects of global environmental governance, the importance of ‘soft’ law and voluntary standards, and the complex reality of over-lapping or loosely connected regulatory regimes.

Through the study of recent developments in international environmental law, regional law (including EU law) and private environmental regulation, this course investigates how new transnational environmental laws are made, how transnational environmental law is implemented and enforced, and whether transnational corporations can be held accountable for environmental damage. These broad questions are explored through case studies on, for example, climate change and plastics pollution.

2 Credits. Evaluation: Class participation (20%), In-Class Group Presentation (30%), Research Paper (4,000 words) (50%).

Comparative Constitutional Law
Eva Maria Belser, University of Fribourg and Roger Boada Queralt, ESADE Law School

Comparative constitutional law is a vibrant and stimulating field of law encompassing a broad array of themes, approaches, and methodologies. In this course, we explore constitutions from various countries and discover different ways of how to deal with the fundamental aims of constituting and constraining state power and of preventing power abuse. We seek to better understand differences, commonalities, dynamics, and interactions between different constitutional systems of the world and hopefully get new insights into constitutional power in theory and in action.

During the course, students familiarise themselves with constitutional theory, and analyse a variety of constitutional issues, read constitutions and cases from numerous countries, and discover the joys and challenges of looking at constitutional law from a transnational perspective. We venture not only into established constitutional systems of the so-called Global North, but also explore more recent constitutional systems of the so-called Global South, and take a special interest in new, fragile, or contested constitutional systems, such as Bosnia and Herzegovina, Chile, Ethiopia, Sri Lanka, South Sudan, Tunisia, Turkey, or Venezuela.

The course begins with an history of constitutionalism and an introduction to comparative constitutional law. We discuss various methodological approaches to comparison and start discovering constitutional systems unfamiliar to us. We try to understand the concepts of constitutional law and constitutionalism from a comparative perspective, reflect on the internationalization of constitutional ideas and practices and discuss the chances and risks linked to constitutional transplants. To better grasp the idea of constitutionalism, we look at constitutions under pressure and go on an exploratory journey to various constitutional systems which currently undergo a constitutional crisis.

We then analyse constitutions as doorkeepers between law and politics and as integrative parts of a country’s legal, political, economic, social, and cultural past and present. We examine the processes of constitution-making and study how constitutions can be amended and effectively enforced. We investigate how constitutional values, such as the protection of rights and freedoms and the legitimacy of institutions, can be protected over time without unreasonably infringing on democratic rights. To answer such questions, we examine different types of constitutions and compare enforcement mechanisms, such as constitutional review by courts. We then look at some key constitutional concepts in more detail and debate different forms of government, democracies, and democratic decline, as well as social and environmental aspects of constitutions. We finally explore how constitutions deal with diversity, discuss federalism, decentralisation, and secession, and the role of constitutions in conflict and post-conflict situations.

The overall aim of the course is to familiarise students with comparative constitutional law, and to equip participants with conceptual tools to do insightful, critical, and original comparative work on their own.

3 Credits. Evaluation: Class participation (25%), Final research paper (50%) and its presentation in class (25%).

Comparative Intellectual Property Law
Catherine Bond, University of  New South Wales

While intellectual property statutes are today mostly based on international agreements, differences between national laws continue to pose challenges, particularly in a modern, transnational world. This course will first explore the international intellectual property framework before turning to consider and compare three major areas of intellectual property – copyright, patents and trade marks – across a range of key jurisdictions, including, though not limited to, the United Kingdom, European Union and United States. Topics will include originality and subsistence (copyright); the application and registration processes (trade marks, patents); the applicable rights (copyright, trade marks and patents); and infringement and enforcement of rights (copyright, trade marks and patents). Although the course content be primarily doctrinal in nature, it will also adopt a normative perspective, examining how these areas of law may be developed given the transnational and technological challenges of the 21^st century.

2 Credits. Evaluation Method: Class Attendance, Participation and In-Class Presentation (30%), Final take-home exam (8 hours) (2,500 words) (70%).

Comparative Judicial Review: Theory and Practice
David Dyzenhaus, University of Toronto

This 2 credit seminar will examine the debates about the legitimacy of judicial review. We will start with the standards debates: Ronald Dworkin and John Hart Ely v. the originalists (Antonin Scalia) and the political constitutionalists (Jeremy Waldron and Richard Bellamy).  We will then ask how adequate these theories are in a context of ‘abusive constitutionalism’, to use just one of terms that describes recent trends (Hungary, Poland, Israel, the UK) to diminish the role of judges in upholding the rule of law and constitutionalism. Finally, we will inquire into the emergence in that context of ‘common good constitutionalism’, a conservative natural law approach inspired by John Finnis and Richard Ekins in the UK and Adrian Vermeule in the US, which is gaining significant traction in the debates and which has interestingly different practical implications from jurisdiction to jurisdiction (the US, the UK and Canada).

2 Credits. Evaluation: Attendance and class participation, including an assigned comment on the week’s reading submitted the day prior to the relevant class (20%), Final take-home exam (8 hours) (2,500 words) (80%).

Criminology of White-Collar Crime
Michele Miravalle, University of Torino

White-collar crimes are generally defined as “crime committed by a person of respectability and high social status in the course of his occupation”. Usually not violent and inspired by business and money-related purposes. Since the seminal research conducted by Edwin Shuterland in the 1930s, criminology traditionally distinguishes between high-status white-collar offenders and low-status ones (so called blue-collar crimes).

This course is divided into two parts:

In the first part students will discuss the theoretical framework of white-collar criminology, introducing some key-concepts of the criminological debate such as consensus and conflict paradigms, process of criminalization, victimization, accountability, law enforcement strategies.

The second part will focus on specific case-studies from different international contexts, regarding both individual and corporate white-collar crimes, focusing on the weak borders between corporate crimes and organized-crimes.

2 Credits. Evaluation: Attendance and class participation (20%), Final take-home exam (8 hours) (2,500 words) (80%).

Human Rights
Eva Maria Belser, University of Fribourg

In 2023, the United Nations commemorated the seventy-fifth anniversary of the Universal Declaration of Human Rights. Since the Declaration, international human rights treaties and constitutional human rights catalogues have proliferated. The various sources produced a complex transnational ecosystem of norms, structures, and processes aiming at the respect and protection of fundamental rights and freedoms. It combines bottom-up approaches, such as local initiatives to promote inclusiveness, regional strategies to protect livelihoods, or national mechanisms to accommodate gender diversity, with top-down norms and concepts, such as the Sustainable Development Goals.

For a long time, the ecosystem seemed to flourish, expand, and deepen. Realities, however, have all too often fallen short of the legal guarantees. In addition to implementation deficits, a superficial consensus may also have hidden significant differences in human rights concepts and priorities around the world. Today’s global turbulences and their devastating impacts on the human rights situation of many people have led to an actual, albeit unspoken, human rights crisis. The crisis has given new impetus to old debates on the universality or cultural (and economic) relativity of human rights. At the same time, demands for group rights, the focus on vulnerability, development, and sustainability pose new challenges to human rights. Can individual guarantees effectively protect marginalised or disenfranchised communities? Are human rights of any use to people with no access to an independent judiciary? Can wisdoms of the European enlightenment age be useful to protect the environment, to deal with the wrongs of the past and to guarantee the rights of future generations?

In our class, we reflect upon human rights theory and practice, recall origins, controversies, and developments of human rights, and explore their possible future. We look at national, regional, and international human rights cases to better understand the transnationalisation of human rights, mutual influences, as well as learning and rebuff methods. Our scope reaches from the so-called first-generation rights (civil and political rights), to the second- (economic, social, and cultural rights) and third-generation rights (such as the right to peace, development, and environment). We investigate the various human rights dimensions, such as duties to passively respect, to actively protect, and to progressively fulfil human rights, and we discuss the roles of different institutional actors, such as national and internationals courts, governments, parliaments, and treaty bodies. Our interest thus ranges from the right to abortion and other reproductive rights, to the right to opinion, religion, marriage, social security, and cultural self-determination, to the accountability of multinational corporations and the rights of future generations. We will also focus on specific groups more likely to suffer from human rights violations and/or less able to assert their rights, such as children, minorities, migrants, persons with disabilities, and people experiencing multiple discriminations. Our overall aim is to improve our understanding of human rights, to enhance our comparative skills, and to sharpen our arguments for and against specific ways to understand and balance human rights.

2 Credits. Evaluation: Class participation (25%), Two short papers (1,000 words maximum) and their presentation in class (25%), Take-home exam (8 hours) (2,500 words maximum) (50%).

Law and Culture Industries
Catherine Bond, University of  New South Wales

How does law regulate, impact and shape culture? Do laws in force today – international agreements, national statutes, with transnational application – protect and reward creativity in the ways we might expect? What other factors – political, economic and technological – influence both these laws and cultural creations? This course will critically explore how a range of laws – including copyright, contract, defamation, trade mark and consumer protection – apply, or fail to apply, to modern culture industries and cultural products. Each class will focus on a particular type of creation and examine both the applicable laws and gaps in this legal protection. This will include a focus on traditional cultural industries – books, art, music and film – but the course will also explore distinctly 21^st century culture, ranging from user-generated content (YouTube, Instagram), to franchises (Marvel, Harry Potter) and the rise of non-fungible tokens.

2 Credits. Evaluation Method: Attendance and class participation (20%), Research Plan (20%), Research Essay (4,000 words) (60%).

ONE-PLUS OPTION:

For 1 extra credit, a limited number of students who need to fulfill a graduation requirement at their home university may write a major research paper. 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.

Please note that this course has been approved as a WR course for Georgetown students.

Law and Society
Michele Miravalle, University of Torino

In today’s society, law permeates all forms of our social behavior, but at the same time law seems not to have the force to influence individuals’ behaviors anymore. Globalization, climate-change, migration and technological developments are some of the contemporary phenomena that make it interesting to study how society is influencing law and vice versa.

In particular, the distance between “law in the books” and “law in action” is becoming more evident in our transnational legal systems during every step of the legal process (definition, implementation, enforcement).

This course is divided into two parts:

The first part the course introduces some key-concepts of the sociology of law, discussing the dichotomy of formality/informality, consensus/conflict, moral/legal, legality/legitimacy.

In the second part, the course focuses on the sociology of deviance and criminal law. Through case-studies and case-law, students will deepen their knowledge of the topics of criminalization, punishment and social control.

2 Credits. Evaluation: Attendance and class participation (10%); Final research paper discussing a case-study (4,000 words) (90%).

ONE-PLUS OPTION:

For 1 extra credit, a limited number of students who need to fulfill a graduation requirement at their home university may write a major research paper. 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.

Please note that this course has been approved as a WR course for Georgetown students.

The Executive Branch in Theory and Practice
Kristen Rundle, University of Melbourne

The executive is the branch of the constitutional order that we associate with the idea of ‘the government’. It is also the branch whose conduct we tend to have in mind when we speak about ‘the rule of law’. Yet the executive branch is the most fluid and elusive branch of the constitutional order, in the sense that determining who or what the executive is in a given instance can present conceptual as well as practical puzzles. Moreover, the character of the executive branch is deeply influenced by the dominance or retreat of particular governing logics. For example, executive branch activity in most countries today is comprised of a complex mix of ideas and institutions inherited from the twentieth century bureaucratic ‘welfare state’ and ‘neoliberal’ tools and commitments that have gained dominance since.

The aim of this seminar is to bring these puzzles into focus by examining a range of different legal and conceptual expressions of the executive branch, in theory and practice. We begin by interrogating our assumptions about who or what the executive branch is, and how we understand its relationship with law. We then examine the legal features and underlying logics of executive branch activity as it finds expression through a range of different forms: the executive as ‘the bureaucracy’, the executive as provider of ‘social welfare’, the executive as administrative decision-maker, the executive as algorithm, the executive as market facilitator, the executive as regulator, the executive as lawmaker, and the executive as contractual party.

These studies of different expressions of the executive branch are then brought to an examination of two case studies that demonstrate the legal, political, ideological, conceptual and practical complexity of contemporary executive branch activity in practice. The first is a case study on the administration of prisons and immigration detention centres. The second is a case study on automated social security administration. Throughout the seminar discussion will focus on the values and assumptions that inform different expressions of the executive branch, and the implications of those different expressions for relationships between people and their governments and our understanding of the rule of law.

2 Credits. Evaluation:

1. Attendance and class participation (30%), comprised of a written comment and class-leading exercise on an assigned week’s reading (20%) and general contribution to class discussion (10%); and
2. Final take-home exam (8 hours) (2,500 words) (70%).

The History of Constitutionalism
Roger Boada Queralt, ESADE Law School

This course explores the different ways in which, over the history of the West, political philosophers and jurists have attempted to harmonise two often conflicting needs. On the one hand, that of setting normative limits to political power to protect liberty or, more broadly, some notion of the common good. On the other hand, that of ensuring that authorities have the legal instruments they require in order to fulfil the ends of the political community.

Our journey will begin with the ancient forms of constitutionalism developed in Greece and Rome, which raise many of the questions we will be grappling with. We shall then move on to the complex balances of power that characterise medieval Europe, along with their theoretical foundations. After that, we shall consider the formation of the modern State in early modern Europe and the rise of absolutism, together with the constitutionalist responses they provoke. This will lead us to the great bourgeois revolutions of the 18^th century, which shape constitutionalism as it is commonly understood today in a particularly decisive way. We shall also venture off the beaten path and delve into some of the critiques of revolutionary constitutionalism, especially in its French version. As the course draws to an end, we will look at the liberal bourgeois constitutional order of 19^th century Europe before finishing off with the social and democratic constitutionalism that starts to emerge after World War I.

2 Credits. Evaluation: Class participation (25%), Reaction papers (25%), Final take-home exam (8 hours) (2,500 words) (50%).

The Politics of Legal Space
David Dyzenhaus, University of Toronto and Kristen Rundle, University of Melbourne

This 3 credit course will connect some of the main debates in legal philosophy with concrete problems of legal practice that arise in relation to ‘legalized injustice’.

We begin by examining the dilemma that faces human rights lawyers when they must reckon with the fact that their victories as well as their defeats serve to legitimise the very regime against which they are struggling. We will do so by looking at concrete examples of such dilemmas as they arise in the legal struggle for the rights of Palestinians living under Israeli occupation, and the rights of the Black majority population of apartheid-era South Africa. We then start the theory section of our course by engaging with two classic debates, between HLA Hart and Lon L Fuller about the nature of legality, and between Hart and Ronald Dworkin about the role of adjudication. From there we turn to Ernst Fraenkel’s analysis of the Nazi state, which was informed by his legal practice as a socialist Jew in Berlin between 1933 and 1938. Fraenkel’s idea that the Nazi state was a Dual State, which combined a ‘normative state’ and a ‘prerogative state’, alerts us to what we will call the ‘politics of legal space’: a politics that makes human rights lawyering simultaneously possible and fraught. It also offers the key to making headway in the debates in legal theory, a claim we will explore through returning to the two contexts of occupation and apartheid.  We then end the course by examining the way in which these debates reproduce themselves within private international law (or conflict of laws): the field of law that seeks to help states navigate transnational space in explaining why private law norms from one jurisdiction apply or don’t apply in another. Here our main example will be pre-Civil War USA and the problem posed for the Union of ‘fugitive slaves’. 

No prior acquaintance with philosophy of law or international law (public and private) is required to undertake this course. 

3 Credits. Evaluation: Attendance and class participation, including an assigned comment on the week’s reading submitted the day prior to the relevant class (20%), Final research paper (4,000 words) (80%).