Rights, Redistribution, and the Rise of the “Litigation State”: The Case of Disability Discrimination Laws

Critics have long maintained that the rights revolution and, by extension, the postwar turn to litigation as a regulatory tool, are the product of a cynical legislative choice. On this view, legislators choose rights and litigation over alternative regulatory approaches to shift costs from on-budget forms (for example, publicly funded social provisions, public enforcement actions by prosecutors or agencies) to off-budget forms (for example, rights-based statutory duties, enforced via private lawsuits). This “cost-shift” theory has never been subjected to sustained theoretical scrutiny or comprehensive empirical test. This article offers the first such analysis, examining a context where the cost-shift hypothesis is at its most plausible: disability discrimination laws, which shift costs away from social welfare programs by requiring that employers hire and “accommodate” workers with disabilities. Using a novel dataset of state-level disability discrimination laws enacted prior to the federal-level Americans with Disabilities Act (ADA) and a range of archival and other materials drawn from state-level legislative campaigns, we find only limited support for the view that cost shifting offered at least part of the motivation for these laws. Our findings offer a fresh perspective on long-standing debates about American disability law and politics, including judicial interpretation of the ADA and its state-level analogues and the relationship of disability rights activism to other rights-based political movements.

Sincere Cooperation, Mutual Trust, and Mutual Recognition in Social Security Coordination

This article looks into the meaning of the concepts of sincere cooperation, mutual trust, and mutual recognition in EU social security coordination. It analyses the legislative choice of coordination as the main regulatory mechanism in the field, and examines the role of administrative cooperation. Furthermore, the article highlights the challenges that arise in situations where mutual recognition is required under the Regulations, as in connection with portable documents relating to the posting of workers. It also considers the limits to mutual trust via the principle of prohibition of fraud and abuse of rights established in the case law of the CJEU on free movement. In the last few years, this principle has been extended into the field of social security law, notably in Altun. In this way, the coordination regime does not require totally blind trust: rather, it balances the Member States' interests of maintaining the integrity of their social security systems with the Union interest of simplifying free movement. As in other fields of EU law relating to free movement, the mutual trust between the Member States in social security coordination may therefore be set aside in extraordinary cases.

Danger! Glyphosate may Expose Weaknesses in Institutional Systems: EU Legislation and Comitology in the Face of a Controversial Reauthorisation

The 2017 glyphosate reauthorisation process has exposed key weaknesses of the EU’s institutional system. First, the role of Germany as Member State rapporteur and the subsequent decision to appoint a group of Member States to form the Assessment Group on Glyphosate (AGG) suggest that the nature of scientific assessments become blurred. These assessments are apparently not just purely objective, science-based and procedural elements of the authorization procedure, but require support from a significant number of Member States as well. Second, the arduous comitology trajectory in the glyphosate reauthorisation process has caused the Commission to initiate questionable changes to comitology. These changes would corrupt the coherence of the EU’s legislative system in general and the constitutional distinction between delegated and implementing acts in particular. Moreover, they would overlook the more obvious solution of relying more on discretion on the part of the Commission. Lastly, the glyphosate reauthorisation has questioned the dichotomy between legislation and executive rule-making, an equally central element of the EU’s constitutional order. This dichotomy is based on a distinction between essential elements that belong to the legislative domain and non-essential element which are more technical in nature. It has been claimed that weighing the economic benefits of pesticides against the health and environmental costs associated with their use is in essence a legislative choice. This claim highlights not so much the practical problem of how to draw the line between political and technical decision-making, but rather denies the very meaning of the dichotomy altogether. Yet, the current system on the placing on the market of plant protection products – based on the legislation providing the general framework and the executive applying this in concrete cases – is certainly not devoid of coherence and logic.

Shattering Myths: The Curious History of the Bulgarian Law of Obligations

While Bulgarian scholars concur that Bulgaria’s Law of Obligations and Contracts, which was enacted in 1950 and which is still in force today following cosmetic changes in the early 1990s, is an original Bulgarian legal text, archival and comparative research shows that it is heavily based on the Italian Codice Civile of 1942. Why would a communist country seek inspiration in a country with a Fascist ideology? Exploring the reasons behind this legislative choice as well as the reasons why this ‘dark’ secret was buried for so long challenges traditional taxonomies of comparative law, reveals the peculiar patterns of legal change, including the key role of the legal scholar in the process, and demonstrates the power of comparative law in shattering myths in legal history.

Comitology: Controlling Everyday Rule-Making in the European Union

Rules issued by the European Commission, based on powers delegated by the Council of Ministers and the European Parliament, constitute the vast majority of all EU rules. They regulate the daily operation of common policies in all areas. Because the devil is often in the details, Commission rules are tightly controlled by the member states. This traditionally takes place in the so-called comitology system, which is a system of 200–300 member state committees set up to control and approve draft Commission rules. Comitology dates back to the early 1960s, when the Common Agricultural Policy was introduced. The institutional setup of the comitology system is a four-tiered structure composed of Treaty rules, framework rules, daily legislation, and the formal and informal working practices in the individual comitology committees. The Treaty of Lisbon gave the comitology system a major overhaul and introduced new types of Commission rules, delegated acts, and implementing acts. Research on comitology has focused on the purpose and design of the system and its daily workings. Relevant research questions for future studies include the legislative choice between delegated and implementing acts, the daily workings of the comitology committees, lobbying of comitology committees by interest groups, introduction of comitology through the back door in the delegated acts system, and the relationship between comitology and the new rule-making role of European agencies.

Equilibrium federal impotence: why the states and not the American national government financed economic development in the antebellum era

Why did states dominate investments in economic development in early America? Between 1787 and 1860, the national governments spent $54 million on transportation infrastructure while the states spent $450 million. Using models of legislative choice, we show that Congress could not finance projects that provided benefits to a minority of districts while spreading the taxes over all. Although states faced the same political problems, they used benefit taxation schemes that coordinated taxation and benefits – for example, by assessing property taxes on the basis of the increase in value due to an infrastructure investment. The US Constitution required the federal government to allocate direct taxes on the basis of population, effectively prohibiting benefit taxation. As a result, federal government expenditures were concentrated in collections of small projects – such as lighthouses and rivers and harbours – that spent money in all districts. Federal inaction was the result of the equilibrium political forces in Congress, and hence an equilibrium impotence.

A Theory of Indirect Election

This chapter analyzes the indirect elections of U.S. senators in state legislatures within a broader theoretical framework of how parties interact with institutional and electoral settings to affect electoral and policy outcomes. It identifies key participants in Senate campaigns during this period—candidates for U.S. Senate, business interests, political party organizations, and state legislators—and constructs a model for how these stakeholders interacted with each other within the structure of legislative choice for U.S. senator along four dimensions—candidate identification, candidate nomination, election criteria, and system responsiveness. It also discusses how an anticipated indirect Senate election might have affected voter turnout in the preceding state legislative election.

Parties to Offences under the Canadian Crimes against Humanity and War Crimes Act : an Analysis of Principal Liability and Complicity

The Crimes against Humanity and War Crimes Act presents an interesting mosaic of law applicable to the domestic prosecution of genocide, crimes against humanity and war crimes. The definitions of offences refer essentially to international law, whereas the available defences, justifications and excuses are those of both Canadian law and international law, and the modes of participation in offences are exclusively those of Canadian law. This raises the question of the relevance and effectiveness of the legislative choice to apply domestic law to the principles of liability for international crimes. The present study offers a preliminary and limited analysis of certain modes of participation in offences provided for by the Act, namely perpetration and complicity pursuant to section 21 of the Criminal Code. This analysis aims at assessing, in light of the principles developed in international criminal law with respect to individual responsibility, whether and how Canadian law may be adapted to the particular — collective — nature of international crimes.