LAW, NORMS & INFORMAL ORDER eJOURNAL

"Discovery and Darkness: The Information Deficit in Criminal Disputes" Free Download
Brooklyn Law Review, Forthcoming
Univ. of Wisconsin Legal Studies Research Paper No. 1226

ION MEYN, University of Wisconsin Law School
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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.

"The Dormancy of Parliaments: The Invisible Cause of Judiciary Empowerment in Central and Eastern Europe" Free Download
Forthcoming (2013) Representation - The Journal of Representative Democracy

CRISTINA E. PARAU, University of Oxford, Department of Politics and International Relations
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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.

"From Saumur to L. (S.): Tracing the Theory and Concept of Religious Freedom under Canadian Law" Free Download
58 Supreme Court Law Review (2d), 2012

FAISAL BHABHA, York University - Osgoode Hall Law School
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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?

"Book Review of 'Constitutionalism and the Enlargement of Europe' by Wojciech Sadurski, Oxford University Press 2012" Free Download
Forthcoming, West European Politics

CRISTINA E. PARAU, University of Oxford, Department of Politics and International Relations
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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.

"Informali - Stato, Élite E Marginali Alle Prese Con L’Irregolarità: Un’Introduzione Critica (The Informals - State, Elites and Marginal Grappling with Irregularities: A Critical Introduction)" Free Download
Etnografia e ricerca qualitativa, 6, 1, 2013, pp. 5-12

PIETRO SAITTA, University of Messina - Center for the Research on Sociology of Law, Information and Legal Institutions
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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.

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About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

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Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law & Co-Director, Institute for Civil Justice, University of Chicago Law School

JOHN BRADFORD BRAITHWAITE
Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)

ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics

PAUL G. MAHONEY
Dean, University of Virginia School of Law

PHILIP N. PETTIT
L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Politics

ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School

ERIC BENNETT RASMUSEN
Indiana University Foundation Professor, Indiana University Bloomington - Department of Business Economics & Public Policy

CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department, Visiting Scholar, Urban-Brookings Tax Policy Center

STEVEN SHAVELL
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School