ION MEYN, University of Wisconsin Law School
Email: meyn@wisc.edu

Scholarship has long recognized a disparity between the discovery rights afforded to civil litigants and those afforded to criminal defendants. The consensus is that this disparity is caused by resource constraints and limited access to the prosecutorial file. This Article challenges that conception, contending that criminal defendants are in fact structurally precluded from conducting any formal investigation. Merely entitled to disclosures of the State's evidence, a criminal defendant must rely on the fruits of the opponent's investigation to somehow suggest a counter-narrative. This dynamic is inconsistent with the design of the adversarial system and results in a failure to engage in adequate pretrial testing. This Article recasts a criminal defendant as an essential party to a criminal investigation who should have the pretrial power to compel information from multiple sources. Certainly, greater access to the prosecutorial file and more resources will mitigate discovery deprivations that currently plague criminal defendants. But without extending a criminal defendant the power to direct an independent and formal investigation, adequate pretrial testing cannot occur. Evaluating the investigative tools that should be extended to a criminal defendant, the Article utilizes a case study to ascertain how the application of these tools might affect a pretrial investigation. Finally, the Article surveys and responds to policy arguments against permitting the participation of criminal defendants in criminal investigations.

CRISTINA E. PARAU, University of Oxford, Department of Politics and International Relations
Email: cristina.parau@politics.ox.ac.uk

The exceptional empowerment of the judiciary, in formal terms, throughout post-Communist Central and Eastern Europe (CEE) has followed an institutional design the uniformity of which is explained by its common origin in a network of transnational legal professionals who constitute both an epistemic community and a community of interest. This origin, however, does not adequately explain the success of their design template. An equally important but far less observable cause is the 'dormancy' of CEE parliaments; in particular, the puzzling lack of resistance by the majority of elected representatives to their own correlative disempowerment. This article makes a start at investigating parliamentary dormancy as a causal factor, three aspects of which are explored: dormancy of origination of judiciary design norms; of oversight of the designers; and of vetoing transfers of power from parliament to the judiciary.

FAISAL BHABHA, York University - Osgoode Hall Law School
Email: fbhabha@osgoode.yorku.ca

This paper’s discussion of the recent Supreme Court decision in L. (S.) v. Commission scolaire des Chênes illustrates how the government action at issue — a multi-faith and ethics educational program designed to promote secular-egalitarian values that were in tension with the values of the claimants in the case — would have been vulnerable under the scrutiny of established religious accommodation law. For this reason, this paper warns that the Amselem framework proves untenable, for it invites a potentially limitless range of individual accommodation claims without any workable and transparent mechanism for reviewing, and judging, the content of those claims. In some cases, a specific government objective might justify limiting a freedom. But the question for courts in such cases is not only how far religious freedom should go and where the limit of freedom lies (in terms of undue hardship or minimal impairment). It also asks what religious freedom should mean conceptually. By “conceptual�, I refer to the definitional qualities of religious freedom. What is its character? What value does it promote? What does it give and what does it demand?

CRISTINA E. PARAU, University of Oxford, Department of Politics and International Relations
Email: cristina.parau@politics.ox.ac.uk

It is one of the merits of this book that it focusses on a timely and important theme that has nonetheless been under-researched and under-theorised: the interplay between supranational constitutionalism and Eastern Enlargement. Sadurski’s treatment of the latter’s influence on the former is especially welcome and stands in contrast with most of the Europeanization literature, which analyses mostly “top-down� causality; viz. the influence and impact of the EU on post-Communist Central and Eastern Europe (CEE); recognising too little “bottom-up� causality which runs the other way. In the same stroke Sadurski widens the sweep of the investigation beyond the EU to encompass the CoE, a valuable contribution inasmuch as the CoE has been “rarely acknowledged by legal and political scholarship� (p. xxi), even though it has been perhaps the more powerful engine of supranational constitutionalism.

PIETRO SAITTA, University of Messina - Center for the Research on Sociology of Law, Information and Legal Institutions
Email: pisait@gmail.com

The present essay – an introduction to the special issue of ERQ on "Informal economies: oppressions, negotiations, resistances" – explores nature and meanings of "informal economy" in the societal organization. In particular, it provides a critical perspective aimed at rejecting merely institutional and legalistic definitions of this phenomenon. The author suggests that the study of informality should include the State, its elites and regulations among the actors and the elements to be put under scrutiny. Informal economy, thus, is seen as the outcome of a complex interplay among official and unofficial worlds. Far from being just a legal problem, and depending on the circumstances, informality is a "space of contradictions" within which oppression, discretion, resistance, liberation, and the reproduction of social relations constantly take place.