Tuesday, May 26, 2020
Francesca Bignami (George Washington University - Law School) has posted EU Law in Populist Times: Crises and Prospects (Francesca Bignami ed., 2020) on SSRN. Here is the abstract:
EU Law in Populist Times: Crises and Prospects analyzes the sovereignty-sensitive EU law that has emerged over the past decade—in economic policy, human migration, internal security, and constitutional fundamentals (rule-of-law policies to combat democratic backsliding). These are legal areas at the heart of state sovereignty, over which the EU’s prerogatives accelerated following the multiple crises that hit beginning in 2009. They are also EU policies that occupy center stage in the acrimonious debates that have emerged between European establishment parties and populist political forces, precisely because of the huge economic, social, and constitutional stakes involved in reaching into core state functions. In other words, both theoretical and political reasons drive the book to take on the broad sweep of sovereignty-sensitive law—the new EU law is categorically different from the old, technocratic regulatory law of the single market; and the new EU law is extraordinarily important because of the bitter, some would say, existential political debate between establishment parties and populist forces that it has catalyzed.
Drawing on contributions by an eminent group of legal scholars and policymakers, the subject-specific sections of the book afford a cutting-edge account of the law, normative debates, and future reform possibilities in each of the hot-button areas. My introduction and conclusion take a step back, and tease out the institutional and legal dynamics that cut across the different areas of sovereignty-sensitive law and that point to common normative challenges. In the introduction, I set up the subject-specific chapters by examining the spillover process responsible for the EU’s metamorphosis from free trade organization to a quasi-federal entity with power over state spending (economic policy), the territorial belonging of people (human migration), their safety (internal security), and the essential aspects of liberal democracy (constitutional fundamentals). In the conclusion, I identify three legitimacy challenges that have emerged across the board—for law, because of the legal complexity generated by spillover into sovereignty-sensitive law; for rights, because of the difficulty of obtaining access to justice in the European Court of Justice to bring fundamental-rights challenges to EU policies; for democracy because of the intergovernmental and bureaucratic processes that have sidelined the European Parliament in the governance of these policy areas. I point to common forms of legal innovation that can be applied across the different policy areas to address these normative shortcomings.