The Keyes to Reclaiming the Racial History Of the Roberts Court

This article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and circumstances surrounding Brown v. Board of Education. For the Court, Brown symbolizes all that is wrong with the history of race in the United States - legal segregation, explicit racial discord, and vicious and random acts of violence. Though Roberts Court opinions suggest that some of those vestiges still exits, the bulk of its jurisprudence indicate the opposite. With Brown’s basic factual premises as its point of reference, the Court has consistently argued that the nation has made tremendous strides away from the condition of racial bigotry, intolerance, and inequity. The article accordingly argues that the Roberts Court reliance on Brown to understand racial progress is anachronistic. Especially as the nation’s focus for racial inequality turned national in scope, the same binaries in Brown that had long served to explain the history of race relations in the United States (such as Black-White, North-South, and Urban-Rural) were giving way to massive multicultural demographic and geographic transformations in the United States in the years and decades after World War II. All of the familiar tropes so clear in Brown and its progeny could no longer fully describe the current reality of shifting and transforming patterns of race relations in the United States. In order to reclaim the history of race from the Roberts Court, the article assesses a case that more accurately symbolizes the recent history and current status of race relations today: Keyes v. School District No. 1. This was the first Supreme Court case to confront how the binaries of cases like Brown proved of little probative value in addressing how and in what ways race and racial discrimination was changing in the United States. Thus, understanding Keyesand the history it reflects reveals much about how and in what ways the Roberts Court should rethink its conclusions regarding the history of race relations in the United States for the last 60 years.

Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement

The use of solitary confinement in U.S. prisons and jails has come under increasing scrutiny. Over the past few months, Supreme Court Justice Anthony Kennedy all but invited constitutional challenges to the use of solitary confinement, while President Obama asked, “Do we really think it makes sense to lock so many people alone in tiny cells for 23 hours a day for months, sometime for years at a time?” Even some of the most notorious prisons and jails, including California’s Pelican Bay State Prison and New York’s Rikers Island, are reforming their use of solitary confinement because of successful litigation and public outcry. Rovner suggests that in light of these developments and “the Supreme Court’s increasing reliance on human dignity as a substantive value underlying and animating constitutional rights,” there is a strong case to make that long-term solitary confinement violates the constitutional right to freedom from cruel and unusual punishment.

Three Dichotomies in Lawyers’ Ethics (With Particular Attention to the Corporation as Client)

Three usually unexpressed, and too often unnoticed, conceptual dichotomies underlie our perception and understanding of lawyers’ ethics. First, the existence of a special body of professional ethics and professional regulation presupposes some special need or risk. Criminal and civil law are apparently insufficient. Ordinary day-to-day morality and ordinary ethics, likewise, are not considered to be enough. What is the risk entailed by the notion of a profession that is special; who needs protection, and from what? Two quite different possible answers to this question provide the first of the three dichotomies examined in this article: one can understand the risk as primarily to a vulnerable client from a powerful professional; or, to the contrary, from a powerful client-lawyer combination toward vulnerable others. Second, what is the foundational orientation of lawyers? Are lawyers serving primarily their particular clients, and those clients’ preferences, choices and autonomy? Or is the primary allegiance of lawyers to some community or collective goal or interest distinct from the particular goals or interests of the client? The third dichotomy concerns not the substance of therisk, or the primary orientation, but the appropriate means of responding to that risk or that fundamental obligation. Should professional ethics be implemented primarily through rules? Or, should we rely on character and the discretion of lawyers to make a thought out, all things considered, decision? Each of these three presents a fundamental difference in how we perceive and address issues of lawyers’ ethics. Each affects our understanding and analysis on multiple levels, from (1) determining the appropriate or requisite conduct in aparticular situation, to (2) framing a specific rule or approach for a particular category of situations, to (3) more general or abstract theory or policy. A person’s inclinations in regard to the dichotomies affects the conclusions that person will reach on each of those levels of analysis, yet those inclinations and assumptions are frequently unexamined and unarticulated. One’s position on each of the dichotomies tends to structure the approach and outcome without the issues and choice having been explicitly addressed or possibly even noticed. This article is an effort to ameliorate that problem. Part I addresses the question of what is the risk in the work of lawyers, or the function of lawyers, for which professional ethics is the answer. The concluding section focuses on the particular problem of the corporation as client. Part II then asks the related and possibly consequent question of what is the foundational orientation or allegiance of the lawyer? Is it to the individual client? Or is it to some larger community interest? Again, the concluding section focuses on thecorporation. Part III turns to the means or method for addressing the obligations and possible problems of the professional ethics of lawyers. Should lawyers’ ethics guide and confine the conduct of lawyers primarily through rules? Or should it function primarily through reliance on the knowledge, judgment and character of lawyers? If the latter were the guide, ethical decisions would be made on a situation by situation basis under the discretion of each lawyer. Toward the end of each discussion possibilities for bridging the dichotomy are considered (and with such bridges each dichotomy may come to look more like a spectrum or continuum.). At several points after its introduction in Parts I and II, the special problem of the corporation as client is revisited and possible solutions suggested. Illustrating the usefulness of keeping the dichotomies in view, Part IV applies them to several exemplary situations of ethical difficulty in actual lawyer practice. For readers finding it difficult to envision the consequences of these distinctions, turning ahead to Part IV may be useful in making the discussion more concrete. Some commonalities across the dichotomies and connections among them are then developed in the concluding section, Part V.

International conference paper presentations: A multimodal analysis to determine effectiveness

International conference presentations represent one of the biggest challenges for academics using English as a Lingua Franca (ELF). This paper aims to initiate exploration into the multimodal academic discourse of oral presentations, including the verbal, written, non-verbal material (NVM) and body language modes. It offers a Systemic Functional Linguistic (SFL) and multimodal framework of presentations to enhance mixed-disciplinary ELF academics' awareness of what needs to be taken into account to communicate effectively at conferences. The model is also used to establish evaluation criteria for the presenters' talks and to carry out a multimodal discourse analysis of four well-rated 20-min talks, two from the technical sciences and two from the social sciences in a workshop scenario. The findings from the analysis and interviews indicate that: (a) a greater awareness of the mode affordances and their combinations can lead to improved performances; (b) higher reliance on the visual modes can compensate for verbal deficiencies; and (c) effective speakers tend to use a variety of modes that often overlap but work together to convey specific meanings. However, firm conclusions cannot be drawn on the basis of workshop presentations, and further studies on the multimodal analysis of ‘real conferences’ within specific disciplines are encouraged.

Crisis política y juventud en España: el declive del bipartidismo electoral

This paper shows the increasing trend of Spanish young people towards non-conventional mechanisms of political expression, in a crisis context which has reduced its reliance on traditional political actors. As an alternative to bipartisanship, political participation moves towards increased interest and attention to new players, such as emergent political parties. Using a covariance structural model, factors such as political activism, awareness and understanding of country problems, and trust in the political system, are explored in order to explain an electoral behavior that is undergoing deep changes.

Implementing the AIFMD: Success or failure? ECMI Commentary No. 34, 28 March 2013

This commentary considers the implementation of the Alternative Investment Fund Managers Directive (AIFMD) by the European Commission. The AIFMD creates an internal market for asset management and as an endeavour to develop market-based finance is an important piece of legislation for the European economy. The author, Mirzha de Manuel Aramendía, considers the implementation of some of the provisions that raised concern among industry participants. He finds that, on balance, a practical and flexible approach to implementation has been followed that should help secure the success of the framework, which at present is still uncertain. The commentary also considers the remuneration guidelines adopted recently by the European Securities and Markets Authority (ESMA). It encourages EU and national authorities to commit to the success of the AIFMD framework, as part of a broader effort to develop capital markets and reduce the historical reliance of the European economy on bank finance.

Patenting Strategies of the EU Pharmaceutical Industry -Crossroad between Patent Law and Competition Policy. Research Papers in Law, 1/2011

From the Introduction. The pharmaceutical sector inquiry carried out by the European Commission in 2008 provides a useful framework for assessing the relationship between the patent system on the one hand and competition policy and law on the other hand. The pharmaceutical market is not only specifically regulated. It is also influenced by the special characteristics of the patent system which enables pharmaceutical companies engaged in research activities to enter into additional arrangements to cope with the competitive pressures of early patent application and the delays in drug approval. Patents appear difficult to reconcile with the need for sufficient and adequate access to medicines, which is why competition expectations imposed on the pharmaceutical sector are very high. The patent system and competition law are interacting components of the market, into which they must both be integrated. This can result in competition law taking a very strict view on the pharmaceutical industry by establishing strict functional performance standards for the reliance on intellectual property rights protection granted by patent law. This is in particular because in this sector the potential welfare losses are not likely to be of only monetary nature. In brief, the more inefficiencies the patent system produces, the greater the risk of an expansive application of competition law in this field. The aim of the present study is to offer a critical and objective view on the use or abuse of patents and defensive strategies in the pharmaceutical industry. It shall also seek to establish whether patents as presently regulated offer an appropriate degree of protection of intellectual property held by the economic operators in the pharmaceutical sector and whether there is a need or, for that matter, scope for improvement. A useful starting point for the present study is provided by the pharmaceutical sector competition inquiry (hereafter “the sector inquiry”) carried out by the European Commission during the first half of 2008. On 8 July 2008, the Commission adopted its Final Report pursuant to Article 17 of Regulation 1/2003 EC, revealing a series of “antitrust shortcomings” that would require further investigation1.

Time to Set Banking Regulation Right. CEPS Paperbacks. March 2012

Excessive leverage and risk-taking by large international banks were the main causes of the 2008-09 financial crisis and the ensuing sharp drop in economic activity and employment. World leaders and central bankers promised that it would not happen again and, to this end, undertook to overhaul banking regulation, first and foremost by rectifying Basel prudential rules. This study argues that the new Basel III Accord and the ensuing EU Capital Requirements Directive IV fail to correct the two main shortcomings of international prudential rules: 1) reliance on banks’ risk management models for the calculation of capital requirements and 2) the lack of accountability by supervisors. Accordingly, the authors propose the calculation of capital requirements without risk adjustment and creation of a system of mandated action by supervisors modelled on the US framework of Prompt Corrective Action (PCA). They also recommend that banks should be required to issue large amounts of debentures that are convertible into equity in order to strengthen market discipline on management and shareholders.

General Principles of EU Law: The Ghost in the Platonic Heaven in Need of Conceptual Clarification. Pittsburgh Papers on the European Union Vol. 2, 2013

General principles are en vogue in EU law – and in need of conceptual clarification. A closer look at several concepts of principle in legal philosophy and legal theory sheds light upon the concept of general principles in EU law. A distinction between an aprioristic model of principle and a model of principle informed by legal positivism may contribute to clarifying the genesis of a (general) principle in EU law, as well as its nature and functions. This paper demonstrates that an evolution has taken place from a reliance on seemingly natural law inspired reflections of general principles via the desperate search to ground general principles in various kinds of sources based on a more or less sound methodology towards an increasing reliance on strictly positivistic approaches. Against this backdrop, general principles are likely to lose significance where there are other norms while retaining an important yet uncontrollable role where the traditional canon of sources is silent.

Towards a New Industrial Policy for Europe. EPC Issue Paper No. 78, November 2014

An ambitious rhetoric has been adopted both at the European and national level towards industrial policy. Along with rhetoric, sweeping action plans to revive our industrial base and reverse off-shoring trends have been attempted. However, concrete measures undertaken have been inconsistent and weak compared to the magnitude of the challenges faced by European manufacturing as well as the policies implemented by our competitors. At the same time the economic and financial crisis has shed light on the risks of an excessive reliance on the service and financial sector and the necessity to look for new sources of growth. As a response, this Issue Paper, by Claire Dhéret, Senior Policy Analyst and Martina Morosi, Programme Assistant, argues that fostering a more innovative, knowledge-intensive, new technology-oriented and resource-efficient manufacturing industry in Europe is the right way to go. To this end, a new EU strategic vision on industrial policy, based on the operationalisation of European cooperation, is urgently required. The paper presents a toolkit for implementing the vision and a series of policy recommendations.

Turkey's economy: a story of success with an uncertain future. OSW Commentary No. 120, 2013-11-05

In the decade since the Justice and Development Party (AKP) came to power, Turkey’s economy has become synonymous with success and well-implemented reforms. Economic development has been the basis of both socio-political stability inside the country and of an ambitious foreign policy agenda pursued by the AKP. However, the risks associated with a series of unresolved issues are becoming increasingly apparent. These include the country’s current account deficit, its over-reliance on short-term external financing, and unfinished reforms, for example of the education sector. This leaves Turkey exposed to over-dependence on investors, especially from the West. Consequently, Ankara has become a hostage of its own image as an economically successful state with a stable socio-political system. Any changes to this image would cause capital flight, as exemplified by the outflow of portfolio investment1 and an increase in the cost of external debt2 that followed the nationwide protests over the proposed closure of Gezi Park last summer. In addition, Turkey remains vulnerable to potential changes in investor sentiment towards emerging markets.

The New EU Criminal Law Competence in Action: The Proposal for a Directive on Criminal Sanctions for Insider Dealing and Market Manipulation. IES WORKING PAPER 5/2013

The aim of this paper is to analyse the proposed Directive on criminal sanctions for insider dealing and market manipulation (COM(2011)654 final), which represents the first exercise of the European Union competence provided for by Article 83(2) of the Treaty on the Functioning of the European Union. The proposal aims at harmonising the sanctioning regimes provided by the Member States for market abuse, imposing the introduction of criminal sanctions and providing an opportunity to critically reflect on the position taken by the Commission towards the use of criminal law. The paper will discuss briefly the evolution of the EU’s criminal law competence, focusing on the Lisbon Treaty. It will analyse the ‘essentiality standard’ for the harmonisation of criminal law included in Article 83(2) TFEU, concluding that this standard encompasses both the subsidiarity and the ultima ratio principles and implies important practical consequences for the Union’s legislator. The research will then focus on the proposed Directive, trying to assess if the Union’s legislator, notwithstanding the ‘symbolic’ function of this proposal in the financial crisis, provides consistent arguments on the respect of the ‘essentiality standard’. The paper will note that the proposal raises some concerns, because of the lack of a clear reliance on empirical data regarding the essential need for the introduction of criminal law provisions. It will be stressed that only the assessment of the essential need of an EU action, according to the standard set in Article 83(2) TFEU, can guarantee a coherent choice of the areas interested by the harmonisation process, preventing the legislator to choose on the basis of other grounds.

U.S. Democracy Promotion from Bush to Obama. EUSpring Working Paper No. 1, April 2015

Throughout the twenty-first century the United States (U.S.) has attempted to balance its traditional national security interests, whilst also seeking to promote the long-term transformation of the Middle East and North Africa (MENA) towards democracy based on liberal values. With the September 11, 2001 terrorist attacks providing a catalyst for policy change, the U.S. has moved away from its twentieth-century policy of pursuing a regional status quo and instinctively balking at political change. Yet, the U.S. has not abandoned its reliance on autocratic regimes that cooperate on more immediate national security interests such as counter-terrorism, counter-proliferation, and the free-flow energy sources into the global market. Rather, U.S. democracy promotion in the MENA has become incremental by design and is characterized by its gradualist and often collaborative nature. U.S. foreign policy in the MENA is, therefore, depicted by a cautious evolutionary stance rather than supporting revolutionary shifts in power.

The Dangers and Inanity of (Euro-) Nationalism: From Communitarianism to Cosmopolitanism. Egmont Paper No. 77, April 2015

INTRODUCTION In the current times of multifaceted crisis, nationalism looks, more than ever, like a positive and necessary feeling. It seems both natural and indispensable if we are to have viable political and social institutions that meet the needs and preferences of all citizens. The following paper contests this vision. Its criticism of nationalism is directed not only at its national forms, but also at any defence of collective identity based on the same model, such as the various forms of European nationalism. Furthermore, the same overriding criticism can be made of different kinds of nationalism, regardless of their more or less open and progressive political content. In order to ground our argument theoretically and practically, we will try to show that nationalism is always potentially harmful to individual rights, and unnecessary for the maintenance of a just social and political system. We will thus oppose any acritical defence of the intrinsic value of a specific community and the belief in its artificial homogeneity. The historical construction of a supposedly homogeneous community, and the insistence on its values, which are perceived as superior and binding, facilitate the absorption of the individual into the collective. As we will explain further in more details, this holistic approach is typical of communitarian approaches. In that respect, it does not really matter whether they appeal to passion or to reason, to some irrational binding features of the community or to more rational political aspects of a common identity. The main problem in nationalism is not the emotion it can trigger, it is not even its reliance on particular values. What makes nationalism problematic is, firstly, that it tends to overlook the intrinsically divisive and contradictory nature of individual and collective interests in unjust societies; secondly, that it attributes an intrinsic superiority to a particular community over others; and thirdly, that it sees politics as a means to promote the interests, values or identity of that community. As an alternative, we will very briefly advocate a cosmopolitan approach that grounds political legitimacy in a demanding approach to individual freedom, rather than in a shared collective identity. However, even if only briefly, we will also carefully distinguish our own vision of cosmopolitanism from those commonly put forward. Frequently, cosmopolitan perspectives entangle their identity frameworks with concrete political projects, without clearly explaining how the latter derive from the former. Our approach to cosmopolitanism, on the other hand, is, first and foremost, a critical vision of all communitarian postulates according to which politics should be based on some form of collective identity. Thus, we insist on the conceptual distinction between a general stance on identity issues and the more practical political ideology one stands for. In a subsequent step, we link this cosmopolitan framework with a progressive approach to individual rights. Because of our demanding approach to individual freedom, our cosmopolitanism goes hand in hand with a revival of identity-free sovereignty. It is therefore distinct from the severe condemnation of sovereignty often found in most mainstream cosmopolitan positions. Finally, instead of the frequent confusion found in public discourses and in the literature between ideals and reality, our position acknowledges the deep gulf separating these two dimensions. It therefore sketches out very general strategic principles to bring normative ideals closer to political reality.

US Democracy Promotion from Bush to Obama. EUSpring Working Paper No. 1, 15 April 2015

Throughout the twenty-first century the United States (U.S.) has attempted to balance its traditional national security interests, whilst also seeking to promote the long-term transformation of the Middle East and North Africa (MENA) towards democracy based on liberal values. With the September 11, 2001 terrorist attacks providing a catalyst for policy change, the U.S. has moved away from its twentieth-century policy of pursuing a regional status quo and instinctively balking at political change. Yet, the U.S. has not abandoned its reliance on autocratic regimes that cooperate on more immediate national security interests such as counter-terrorism, counter-proliferation, and the free-flow energy sources into the global market. Rather, U.S. democracy promotion in the MENA has become incremental by design and is characterized by its gradualist and often-collaborative nature. U.S. foreign policy in the MENA is, therefore, depicted by a cautious evolutionary stance rather than supporting revolutionary shifts in power.