Olivier Sylvain: "Internet Governance and Democratic Legitimacy"

Olivier Sylvain (Fordham University School of Law; Columbia University) has posted "Internet Governance and Democratic Legitimacy" (Federal Communications Law Journal, Vol. 62, No. 2, 2010). Here's the abstract:

Even as the Internet goes pop, federal policymakers continue to surrender their statutory obligation to regulate communications in the first instance to extralegal nongovernmental organizations comprised of technical experts. The Federal Communications Commission’s conclusion that a major broadband service provider's network management practices were unreasonable is a case in point. There, in the absence of any decisive legislative or even regulatory guidance, the FCC turned principally to the transmission principles of the Internet Engineering Taskforce, the preeminent nongovernmental Internet engineering standard-setting organization: to wit, (1) decentralization, (2) interoperability, and (3) user empowerment. This impulse to defer as a matter of course to such an organization without any legal mechanism requiring as much is flawed. Of course, there is something to be said for an administrative regime that defers first-instance rulemaking authority on technologically complex matters to standard-setting organizations comprised of experts. Without more, however, such an approach fails to appreciate the foundational and uniquely public nature of communications in democracy. Historically, policymakers have required that communications governance be addressed one way or another to the public and its institutional political processes, and not insulated from them. At a minimum, policymakers should be required to explicitly substantiate their hopeful assumption that the pertinent non-governmental standard-setting organizations have democratically legitimated authority to regulate in the first instance.

This article is chiefly a critique of the prevailing "technological" and "economic" approaches to Internet governance. It then sketches a "participatory" approach that is attentive above all to civic-minded concerns outside of the competence of technological and economic expertise: namely, (1) universal access and (2) the circulation of issues of local and common concern.

Carol Harlow - Richard Rawlings: "Law and Administration"

Carol Harlow & Richard Rawlings (London School of Economics and Political Science) have published "Law and Administration. 3rd. Edition" (Cambridge Univ. Press 2009). Contents include:

1. Red and green light theories; 2. The changing state; 3. Transforming judicial review; 4. Making the law; 5. Rules and discretion; 6. Regulation and governance; 7. Regulatory design and accountability; 8. Contractual revolution; 9. Contract, contract, contract; 10. Into the jungle: complaints, grievances and disputes; 11. Tribunals in transition; 12. The Parliamentary Ombudsman: firewatcher or firefighter?; 13. Inquiries: a costly placebo?; 14. Procedural review: continuity and change; 15. Elite dimension: court structures and process; 16. Judicial review and administration: a tangled web; 17. 'Golden handshakes': compensation and liability.

Paul P. Craig: "Political Constitutionalism and Judicial Review"

Paul Craig (University of Oxford - Faculty of Law) has posted "Political Constitutionalism and Judicial Review" (in EFFECTIVE JUDICIAL REVIEW: A CORNERSTONE OF GOOD GOVERNANCE, C. Forsyth, M. Elliott, S. Jhaveri, A. Scully-Hill, M. Ramsden, eds., Oxford University Press, Forthcoming). Here's the abstract:

The principal academic challenge to the legitimacy of judicial review is presently the work of political constitutionalists. Their main focus hitherto has been constitutional review, but there is now also literature challenging non-constitutional review, which is explored in this paper. The structure of the argument is as follows. In part one the political constitutionalist argument against constitutional review is considered. I do not claim to add to the sophisticated literature on this issue, but its relevance to the Human Rights Act 1998 will be considered. The implications of political constitutionalism for judicial review in administrative law are however much less well-developed. Thus parts two and three critically assess what are termed the radical and moderate view of political constitutionalism. In part four legal constitutionalism is revisited and a moderate view thereof is presented that best captures the legitimacy of judicial review in administrative law, and provides a balanced account of the inter-relationship of courts and the political process in delivering accountable government. In part five the relationship between legal and political constitutionalism is clarified, while part six addresses some of the broader criticisms of legal constitutionalism in the light of the moderate version thereof presented in this paper.

William Funk: "Public Participation and Transparency in Administrative Law - Three Examples as an Object Lesson"

William Funk (Lewis & Clark Law School) has posted "Public Participation and Transparency in Administrative Law - Three Examples as an Object Lesson" (Administrative Law Review, Vol. 61, No. 171, 2009). Here's the abstract:

This Article, written for a forum on comparative administrative law, reviews the development of public participation and transparency in American administrative law in general and then examines three specific laws that attempted to increase transparency and public participation - the Federal Advisory Committee Act (FACA), the Government in the Sunshine Act (Sunshine Act), and the Negotiated Rulemaking Act (NRA). These laws, however, are largely viewed as failures, or at least deeply ineffective, in achieving their goals. In examining these laws, this Article attempts to discern why they failed and suggests that the reasons for their failure are not of a nature that can be easily cured by amendment, but rather reflect significant structural impediments to increasing transparency and public participation through such mechanisms. In this way, this Article may provide guidance to EU lawmakers in attempting to craft mechanisms that can effectively facilitate public participation and transparency in EU agency decisionmaking.

Suplemento de Derecho Constitucional de La Ley (Septiembre 2009)

El Suplemento de Derecho Constitucional de la Revista Jurídica La Ley, del mes de Septiembre de 2009 (28/09/2009), incluye los siguientes artículos:

Doctrina

Ana de la Vega de Díaz Ricci, Deslegalización y vaciamiento de competencias municipales: la afectación de la autonomía en materia ambiental y turística.

Víctor Bazán, Inconstitucionalidad e inconvencionalidad por omisión.

Alejandro C. Verdaguer, La sentencia de la Corte en el caso "Siri": la creación de un discurso constituyente.

Notas a Fallo

Carmen Fontán, Revisión judicial del enjuiciamiento de magistrados: Un saludable activismo de la Corte Federal.

María Angélica Gelli, La selección de los jueces bajo el parámetro de la razonabilidad (El caso del juez Alioto).

Derecho Internacional

Susana Czar de Zalduendo, Dos opiniones consultivas coincidentes en el Mercosur: ¿Nace una jurisprudencia consistente?

Adrián Ventura, Libertad de expresión, estándares en la Corte IDH 1985-2009 y la situación en la Argentina.