Double Reasonableness and the Fourth Amendment

Recently the Supreme Court has placed new limits on both the substance of the Fourth Amendment and the exclusionary that serves as the principal remedy for Fourth Amendment violations. In this Article we briefly summarize these limitations and then argue that the curtailment of the exclusionary rule has the potential to ameliorate substantive Fourth Amendment doctrine. The limited reach of the modern exclusionary rule provides the Court with license to develop an expansive new substantive framework free of the specter of a correspondingly expansive remedial framework. One point on which nearly all jurists and commentators agree is that current Fourth Amendment doctrine is a mess. We argue that the Court’s exclusionary rule cases, while frustrating and ill-conceived if viewed in isolation, provide the Court with an opportunity to revisit problematic Fourth Amendment doctrine that was born under a very different remedial regime. Such an approach would allow the Court to adhere to its current view of the exclusionary rule as a remedy of last resort while creating a Fourth Amendment with teeth. The goal is a Fourth Amendment right that is more substantial and clearly defined, but a remedy that remains limited to egregious violations of clear substantive rules. The time is now to lift the Fourth Amendment fog.

De Gaulle and Europe: Historical Revision and Social Science Theory. Program for the Study of Germany and Europe Working Paper Series 8.5

The thousands of books and articles on Charles de Gaulle's policy toward European integration, whether written by historians, social scientists, or commentators, universally accord primary explanatory importance to the General's distinctive geopolitical ideology. In explaining his motivations, only secondary significance, if any at all, is attached to commercial considerations. This paper seeks to reverse this historiographical consensus by examining the four major decisions toward European integration during de Gaulle's presidency: the decisions to remain in the Common Market in 1958, to propose the Foucher Plan in the early 1960s, to veto British accession to the EC, and to provoke the "empty chair" crisis in 1965-1966, resulting in the "Luxembourg Compromise." In each case, the overwhelming bulk of the primary evidence-speeches, memoirs, or government documents-suggests that de Gaulle's primary motivation was economic, not geopolitical or ideological. Like his predecessors and successors, de Gaulle sought to promote French industry and agriculture by establishing protected markets for their export products. This empirical finding has three broader implications: (1) For those interesred in the European Union, it suggests that regional integration has been driven primarily by economic, not geopolitical considerations--even in the "least likely" case. (2) For those interested in the role of ideas in foreign policy, it suggests that strong interest groups in a democracy limit the impact of a leader's geopolitical ideology--even where the executive has very broad institutional autonomy. De Gaulle was a democratic statesman first and an ideological visionary second. (3) For those who employ qualitative case-study methods, it suggests that even a broad, representative sample of secondary sources does not create a firm basis for causal inference. For political scientists, as for historians, there is in many cases no reliable alternative to primary-source research.

L’idéalisme et le phénoménalisme leibnizien

La question de l’idéalisme leibnizien, qui permet d’entrer au cœur de la métaphysique de Leibniz, intéresse encore aujourd’hui de nombreux commentateurs. Ceux-ci utilisent les termes « réalisme », « idéalisme », voire « phénoménalisme », pour caractériser la métaphysique leibnizienne et un travail doit être fait pour rassembler et comparer leurs analyses, ce que nous proposons de faire d’abord dans ce mémoire. Ce sont surtout les textes mêmes de Leibniz qui seront abordés dans le présent travail et qui permettront de proposer la lecture suivante : si la métaphysique leibnizienne est réaliste en ce sens qu’elle met en place une entité elle-même « mind-independent », c'est-à-dire la monade, elle peut être considérée comme idéaliste (idéalisme substantiel), puisque cette entité, étant sans partie et sans étendue, est en ce sens idéelle. Et si tout peut se réduire à cette monade, c’est toute la fondation de la métaphysique de Leibniz qui se retrouve à être idéelle. Or, ceci ne règle pas le statut des corps qui peuvent être considérés soit comme de simples phénomènes réductibles aux perceptions des monades (idéalisme matériel), soit comme des êtres ayant une réalité indépendante d’un esprit, lesquels se réduiraient cette fois aux monades qui les composent (réalisme matériel). Face à ces deux possibilités, nous développerons une position mitoyenne qui défend l’idée que les corps sont en effet composés de monades qui leur procurent une certaine réalité, mais qu’ils dépendront toujours de l’action d’un esprit qui lui seul pourra leur procurer une certaine unité.

Europe between financial repression and regulatory capture. Bruegel Working Paper 2014/08, July 2014

From the Introduction. In the long shadow of the euro-area crisis, the relationship between governments and their banks has been brought to the the centre of the policy debate in Europe by the implementation of regulatory reforms, the risks associated with financial fragmentation, and the fight to sustain the flow of credit to governments and corporates. The attempt to interpret the patterns of pressure and influence running between governments and their financial system has led commentators to rediscover and give new life to concepts originating from academic debates of the 1970s such as “regulatory capture” and “financial repression”. Government agencies have been frequently described as being at the mercy of the financial sector, often allowing financial interests to hijack political, regulatory and supervisory processes in order to favouring their own private interests over the public good1. An opposite view has instead pointed the finger at governments, which have often been portrayed as subverting markets and abusing the financial system to their benefit, either in order to secure better financing conditions to overcome their own financial difficulties, or with the objective of directing credit to certain sectors of the economy, “repressing” the free functioning of financial markets and potentially the private interests of some of its participants2

Is Independence Possible in an Interdependent World? Scotland vs. the UK's Participation in the European Economy. Bruges European Economic Policy (BEEP) Briefing 30/2013

Many commentators have criticised the strategy used to finance regional governments such as the Scottish Parliament – both the block grant system and the limited amount of fiscal autonomy devised in the Scotland Act of 2012. This lecture sets out to identify what level of autonomy or independence would best suit a regional economy in a currency union, and also the institutional changes needed to sustain those arrangements. Our argument is developed along three lines. First, we set out the advantages of a fiscal federalism framework and the institutions needed to support it, but which the Euro-zone currently lacks. The second is to elaborate a model of fiscal federalism where comprehensive powers of taxation and spending are devolved (an independent Scotland and the UK remain constituent members of the EU and European economy). Third, we evaluate the main arguments for the breakup of nations or economic unions with Scotland and the UK as leading examples. We note that greater autonomy may not result in increases in long run economic growth rate, but it does imply that enhancing the fiscal competence and responsibility of regional governments would result in productivity gains and hence higher levels of GDP per head. That means the population is permanently richer than before, even if ultimately their incomes continue to grow at the same rate. It turns out that these improvements can be achieved through devolved tax powers, but not through devolved spending powers or shared taxes.

The Kyrgyzstani Presidential Elections: Atambaev’s Challenges. EUCAM Commentary No. 21, November 2011

After much anticipation and anxiety about the presidential elections in Kyrgyzstan, there is a feeling of relief that Almazbek Atambaev won the contest with an overwhelming majority, making a second round of elections unnecessary. The presidential race passed off without violence and unrest, which many in Kyrgyzstan consider an achievement in itself. The scale of Atambaev’s majority took many commentators by surprise as some had predicted a low turnout and a strong oppositional challenge. But according to the Central Electoral Commission, the turnout was 61.28 percent and Atambaev gained 63 percent of the votes. The elections were observed by 792 international observers from 56 countries. Although international observers have criticized electoral irregularities, pointing to incomplete voter registrations and ballot stuffing, overall the elections were assessed as encouraging.

The sovereign debt crisis that isn't: Or, How to turn a lending crisis into a spending crisis and pocket the spread. ACES Cases No. 2014.1

It’s a testament to the power of ideas in politics that the ongoing policy disaster in Europe is still referred to, by academic as well as popular commentators, as the European Sovereign Debt Crisis. That there was a crisis in European sovereign debt markets in 2010 through the middle of 2012 is not in doubt. That is was a crisis of European sovereign debt markets generated by ‘too much spending’ should be very much in doubt. The ongoing European economic crisis is in fact a transmuted private sector banking crisis first exacerbated and then calmed by central bank policy, the costs of which have been asymmetrically distributed across European mass publics.

The Euro blame game and its implications for policy and financial markets. ACES Cases No. 2012.2

The recent financial crisis in some of the eurozone member countries has received a great deal of attention by investors, policy makers and commentators alike. Often these events are interpreted as a failure of the euro and the sustainability of the eurozone is called into question. This paper shows that this analysis and its emphasis are flawed. Fiscal imbalances and financial market imperfections are at the core of the problem, and they need to be addressed directly to prevent future crises.

Growth for Europe – Is the Juncker Plan the answer? EPC Discussion Paper, 20 March 2015

Executive Summary. The euro area is still suffering from low growth and high unemployment. For the recovery to become a reality, there needs to be a balance between fiscal discipline, supply side improvements and actions aimed at stimulating demand and growth. Increasing investment, both private and public, are important components in overcoming the recession. This becomes especially clear when comparing investment dynamics during the crisis with pre-crisis levels. Total investment is still much lower than before the crisis and public investment is well below its pre-crisis peak as well. In late November 2014, European Commission President Jean-Claude Juncker submitted a long-awaited proposal for a European Investment Plan that aims to stimulate private investment. Apart from the creation of the new European Fund for Strategic Investment (EFSI), through which private investors will receive public guarantees, the investment plan also aims to provide project assistance and improve the Single Market by removing sector-specific or other financial barriers to investment. While generally perceived as a first positive step towards increasing private investment, some commentators have expressed reservations about the plan. These include, among others, the lack of fresh money for the initial contributions to EFSI. Since a substantial amount of these contributions is reshuffled from other places in the European budget, the question was raised whether EFSI can fund additional projects or just replicates investment projects that would have happened without the plan. Other criticism relates to the high estimate of the expected leverage ratio of 1:15, and to the risk that the plan will only have a limited impact on stressed economies. The Juncker Plan addresses private investment, but so far there really is no clear strategy to stimulate productive public investment on the European and national level. Countries with fiscal space are reluctant to engage in higher spending, while those willing and in need of it the most are restricted by the rules. Member States and the Commission should therefore discuss options for further improving the euro area's economic governance. In addition to urging countries with fiscal space to increase investing in national public goods, investment could be treated with budget flexibility. One could, for instance, upgrade the importance of public investment in the European Semester. Additional deficit granted for public investment purposes could be attached to certain Country-Specific Recommendations. Another solution would be to allow some form of budget flexibility, such as the formulation of a new Golden Rule for productive public investment becoming part of the Stability and Growth Pact's application. Besides relying on a larger amount of flexibility in the rules, the Financial Transaction Tax (FTT) could be another solution to fund investment in European public goods. It will also be necessary to overcome the mistrust among Member States that is preventing further action. The political bargain of stronger conditionality, such as through contractual arrangements, could improve the situation. Increased trust will also be an important condition for tackling long-reaching economic governance reforms such as the creation of a Fiscal Capacity, which could take the form of a macroeconomic shock insurance. Such a Fiscal Capacity could make a real difference in providing the necessary funding to maintain productive public investment, even in times of deep recessions. The proposals presented do not attempt to be conclusive, but shall rather be an input for a wider debate on how to increase growth and employment in Europe. The paper draws heavily on the discussion of a Workshop on Growth and Investment, which the European Policy Centre (EPC) hosted on 10 December 2014 under Chatham-House Rule, with a group of economists and representatives from the European institutions.

Trade and geopolitics: should the EU engage with the Eurasian Economic Union? EPC Policy Brief, 2 April 2015

In an effort to find a solution to the deteriorating relationship between the EU and Russia, various commentators, policy-makers and experts have suggested that the EU should seriously consider engaging with the Eurasian Economic Union, as part of a new ‘grand bargain’ between Russia and the EU. If Ukraine will no longer be forced to choose between two integrating regimes, so the argument goes, Russian sensibilities can be pacified, which will in turn, hopefully, lead to peace in eastern Ukraine. However, according to Rilka Dragneva and Kataryna Wolczuk, these arguments are based on a number of problematic assumptions about integration dynamics in the eastern neighbourhood. In this Policy Brief, they recommend the EU better think twice before further engaging with the EEU.

De Gaulle and Europe: Historical Revision and Social Science Theory. CES Germany & Europe Working Papers, No. 08.5, 1998

The thousands of books and articles on Charles de Gaulle's policy toward European integration, whether written by historians, political scientists, or commentators, universally accord primary explanatory importance to the General's distinctive geopolitical ideology. In explaining his motivations, only secondary significance, if any at all, is attached to commercial considerations. This paper seeks to reverse this historiographical consensus by the four major decisions toward European integration taken under de Gaulle's Presidency: the decisions to remain in the Common Market in 1958, to propose the Fouchet Plan in the early 1960s, to veto British accession to the EC, and to provoke the "empty chair" crisis in 1965-1966, resulting in Luxembourg Compromise. In each case, the overwhelming bulk of the primary evidence speeches, memoirs, or government documents suggests that de Gaulle's primary motivation was economic, not geopolitical or ideological. Like his predecessors and successors, de Gaulle sought to promote French industry and agriculture by establishing protected markets for their export products. This empirical finding has three broader implications: (1) For those interested in the European Union, it suggests that regional integration has been driven primarily by economic, not geopolitical considerations even in the least likely case. (2) For those interested in the role of ideas in foreign policy, it suggests that strong interest groups in a democracy limit the impact of a leaders geopolitical ideology even where the executive has very broad institutional autonomy. De Gaulle was a democratic statesman first and an ideological visionary second. (3) For those who employ qualitative case-study methods, it suggests that even a broad, representative sample of secondary sources does not create a firm basis for causal inference. For political scientists, as for historians, there is in many cases no reliable alternative to primary source research.

The Common Security and Defence Policy: National Perspectives. Egmont Paper No. 79, May 2015

FOREWORD. When one looks at the present state of the CSDP, one cannot help but look on with disenchantment at the energy that appears to have abandoned both institutions and Member States. Commentators increasingly take for granted that nothing much should be expected from this field of EU policy. The reasons for this state of mind are well known: the recent economic and financial strains, which have impacted all EU action since 2008, means that most of the Member States will struggle to keep their defence budgets at their present level in the future, and we may even see reductions. Furthermore, and to put it mildly, most of the recent CSDP operations have also experienced a lack of enthusiasm. Adding to this overall trend, the EU is far from presenting a common vision of what security and defence should really mean. Many of the Member States do not want to be involved in all of today’s international turmoils, and they rarely share the strategic culture which inspires those Member States who see themselves as having special responsibilities in dealing with these crises. In the end it may be that Member States diverge fundamentally on the simple question of whether it is relevant for the EU to engage in most of the ‘hot’ crises Europe faces; many prefer to see Europe as a soft power, mostly dedicated to intervening on less dramatic fronts and more inclined to mend than to fight. For whatever reason given, it remains that if there is a lack of common understanding on what CSDP should really be about, it should not come as a surprise if this policy is presently in stalemate. As an additional blow, the Ukrainian crisis, which dragged on for the whole of last year, could only add to the downward spiral the EU has been experiencing, with a new Russia aggressively confronting Europe in a manner not too distant from the Cold War days. This attitude has triggered the natural reaction among EU Member States to seek reassurances from NATO about their own national security. Coupled with the return of France a few years ago into the integrated military command, NATO’s renewed relevance has sent a strong message to Europe about the military organisation’s credibility with regard to collective defence. Surprisingly, this overall trend was gathering momentum at the same time as other more positive developments. The European Council of December 2013 dedicated its main session to CSDP: it underlined Europe’s role as a ‘security provider’ while adopting a very ambitious road map for Europe in all possible dimensions of the security sector. Hence the impression of a genuine boost to all EU institutions, which have been invited to join efforts and give CSDP a reinvigorated efficiency. In the same way, the increasing instability in Europe’s neighbourhood has also called for more EU operations: most recently in Iraq, Libya, Northern Nigeria or South Sudan. Pressure for further EU engagement has been one of the most constant features of the discussions taking place around these crises. Moreover, a growing number of EU partners in Asia, Latin America or Eastern Europe have shown a renewed eagerness to join CSDP missions in what sounds like a vote of confidence for EU capacities. What kind of conclusion should be drawn from this contradictory situation? Probably that the EU has much more potential than it can sometimes figure out itself, if only it would be ready to adapt to the new global realities. But, more than anything else, an enhanced CSDP needs from all Member States strong political will and a clear vision of what they want this policy to be. Without this indispensable ingredient CSDP may continue to run its course, as it does today. It may even grow in efficiency but it will keep lacking the one resource that would definitely help it overcome all the present shortcomings that have prevented Europe from finding its true role and mission through the CSDP. Member States remain central to EU security and defence policy. This is why this collection of essays is so valuable for assessing in no uncertain way the long road that lies ahead for any progress to be made. Pierre VIMONT Senior Associate at Carnegie Europe Former Executive Secretary-General of the European External Action Service

spotlight europe #2015/04—October 2015: A Fiscal Union for Europe – Building Block and Not a Magic Bullet

The dramatic negotiations with Greece in the past few months have been a telling reminder of the weaknesses of the euro area. Most of the commentators are of the opinion that if the monetary union is going to be crisis-resistant and stable in the long term, certain very important elements will have to be changed. However, there is little or no agreement when it comes to specifying the "what" and the "how". In particular there are heated debates about the right steps to further integration in the area of fiscal policy. "Fiscal union can create stability only if it includes both credible budgetary rules and some kind of risk sharing", argue Katharina Gnath and Jörg Haas in the latest spotlight europe. However, "whilst it is an important and effective way of stabilizing the euro area, it should not exclude the use of other instruments."

EU Mission in Kosovo (EULEX): Constructing Ambiguity or Constructive Disunity? Transatlantic Security Paper No. 3, June 2011

In which skies should auspices about the future of EU foreign policy be looked for, Libya’s or Kosovo’s? Many commentators have been prompt in digging the grave for EU Security and Defense Policy after Member States’ discordance over taking military action against the Qaddafi regime1. However, as this paper will emphasize through the case of Kosovo, unanimity is not always an indispensable prerequisite – and should not be regarded as the sole criteria – to EU action in regional security. Overly focusing on the ‘speak with one voice’ mantra sometimes leads to stop short of assessing actual outcomes.

Language, Identity, Politics-the Myth of Two Ukraines. Bertelsmann Policy Brief, April 2014

The narrative of two Ukraines – the existence of two separate cultural-political communities within one Ukrainian state – has accompanied the relatively short history of inde-pendent Ukraine from the very be-ginning. Articulated by Mykola Ryabchuk more than twenty years ago1 and seemingly logical and reasonable, it has become the fa-vourite narrative of many Ukrainian and international commentators and analysts. One of these Ukraines is pro-European, shares liberal democracy values, wants to join the European Union, “return to Europe” and, what is very im-portant, speaks Ukrainian. The symbolic centre of this Ukraine is Lviv. The other is nostalgic about the Soviet Union, has close rela-tions with contemporary Russia, is hostile towards the West and does not share “western” values. The language of this other Ukraine is Russian and its “capital” is Do-netsk. Taking on board this narra-tive simply means equating one’s region of residence, political views, and preferred language.