Fernanda G Nicola

Intimate Liability: Emotional Harm, Family Law, and Stereotyped Narratives of Interspousal Torts

Fernanda Nicola — Tue, 09 Apr 2013 07:50:32 PDT

Tort liability expanded in the twentieth century, a shift scholars generally attribute to the reorganization of tort law around the fault principle. In privileging compensation and deterrence, this reconfiguration ended various restrictions on liability, long viewed as arbitrary, including limits to the recovery for emotional harm and interspousal immunities. Tort and family law scholars alike portray the end of such immunities as a milestone for gender equality. Their elimination enables spouses and partners to secure compensation for emotional and physical abuse arising in intimate relationships. Yet, tort law is not operating in this way. On the contrary, by endorsing a family/market distinction in private law, scholars have pushed intimate liability claims between spouses away from tort law and into family law. As a result, compensation for emotional harm is mostly actionable in tort when it occurs in the realm of the market rather than in the realm of the family.

Today, intimate liability is left to the agendas of political reformers. Feminists on the left and social conservatives on the right are shaping the litigation on interspousal torts, but they have opposing political agendas. While feminists seek to create more gender equality and protect women both within and outside the marital bond, social conservatives seek to strengthen traditional family values by favoring married plaintiffs only. Both sets of reformers, however, care more about promoting their respective agendas than redressing the harm suffered by those who do not fit their stereotyped narratives.

The current intimate liability regime has a class bias. Plaintiffs in upper-middle-class marriages can benefit from interspousal tort litigation, particularly during divorce proceedings, because they can pay for private liability insurance. Low- and middle-income married couples, who cannot afford such liability insurance, cannot bring these claims and instead are at the mercy of tort lawyers operating on contingency fees. Furthermore, unless litigation on emotional harm happens during the breakup of a marriage, it is almost impossible for non-married plaintiffs to recover damages. These include non-married partners, cohabitants, and same-sex couples. To overhaul such unequal outcomes, this paper suggests departing from a market/family dichotomy in tort law. It advocates reconceptualizing intimate liability as a stand-alone tort remedy in order to deter abusive emotional behavior enabled by relationships in which economic and emotional dependency are deeply intertwined.

Invisible Cities in Europe

Fernanda Nicola — Mon, 08 Apr 2013 09:30:33 PDT

Cities in Europe control municipal services, varying from education, public health, waste management and housing policies, that at times clash with European Union rules regulating the functioning of the Internal Market. For this reason, cities are often actors in judicial proceedings before the European courts. The Lisbon Treaty has revived the judiciability of the subsidiarity principle by giving new powers to subnational actors to participate in the formation of EU law. Yet even though policy-makers promote local participation and democracy, judges, in striking down or upholding local welfare policies that conflict with Internal Market rules, have rendered cities invisible. In balancing conflicting EU versus Member States interests as two autonomous and independent spheres of power, European judges rely on a fiction of non-intervention in state-local matters. In their decisions, city interests are either subsumed into State or EU goals, or they are reduced to private market actors. Cities have traditionally been seats of civilization and flourishing of an integrated Europe but with the Internal Market, they have necessarily taken a back seat. To redress the balance, judges should address the fact that what is decided in Luxembourg inevitably affects the redistribution of power and resources in state-local relations. By exposing the interdependence between the powers of the Union, its Member States and the plurality of cities that constitute them, such process will create greater democratic accountability in the Internal Market jurisprudence.

Another View on European Integration: Distributive Stakes in the Harmonization of European Law

Fernanda Nicola — Mon, 08 Apr 2013 09:30:31 PDT

There are two progressive scholarly perspectives on the harmonization of law within the European Union (EU). Both focus on the constitutionality of European institutions and the legitimacy of their decision-making processes. The constitutional asymmetry criticizes the EU institutional arrangement for prioritizing market objectives over social policy goals. The proceduralization perspective, on the other hand, celebrates Europeanization for enabling transnational deliberative democratic projects. Neither perspective, however, addresses the distributive consequences of the harmonization of European law and the indeterminacy of its socio-economic impact in local contexts. Through the analysis of several European Court of Justice (ECJ) judgments, this essay argues that jurists need a third progressive approach - one that attempts to take into account both the uneven distributive impact of harmonization in a multi-level system of governance and the distributive consequences of harmonized private law rules.

The False Promise of Decentralization in EU Cohesion Policy

Fernanda G. Nicola — Mon, 08 Apr 2013 09:30:29 PDT

The European Union (EU) is “going local” by taking decentralization of power seriously in order to create greater effectiveness for European law and policy, especially with respect to its economic development or cohesion policy strategies. In this vein, the Treaty of Lisbon has modified the subsidiarity principle now including a “regional and local” dimension while offering new legal and political safeguards to protect subnational actors from the reach of EU law. However, in EU cohesion policy, cities, regions, and Länder in the different Member States are ‘lumped together’ into a third-level Europe that does not differentiate among these subnational actors. In addition, despite the attempt to connect Europe to its subnational level to enhance local autonomy and territorial cohesion, European courts do not always recognize the local level as independent from their Member State. As a result, EU cohesion policies attempting to narrow the welfare imbalances among European regions are not territorially attuned, flexible enough, or equipped with accountability mechanisms capable to address the development problems they are designed to solve. Scholars have shed light on the invisibility of local actors by proposing to strengthen their “input legitimacy” (process and participation) through greater representation before EU decision making processes or European courts. By focusing on EU-wide procedures instead of understanding how different legal and geographical factors characterize each territory, EU scholars have refrained from addressing whether increasing decentralization is accomplishing the desired development goals and improving the “output legitimacy” (effectiveness of regulation) of EU institutions. This Article instead offers a "thick" description of EU cohesion policies aimed at creating economic development and territorial cohesion by disbursing EU funding to the European peripheries. Rather than assessing if these policies enhance local autonomy and decentralization through EU-local cooperation, I demonstrate that often they foster centralization and produce new conflicts among heterogeneous subnational actors, Member States, and the EU. Through a textured account of local power in Germany, Greece, and Italy, I suggest that a more contextualized and needs-based approach to cohesion policies, which acknowledges territorial and socio-economic disparities in each region, would anticipate and evade the shortcomings of current EU cohesion policy. This Article departs from notions of local autonomy and decentralization of power to improve the “input legitimacy” of EU institutions by suggesting that the findings on cohesion policy — the need to pay greater attention to local heterogeneity and to create accountability mechanisms to monitor disbursement policies — are important lessons about local governance in the EU that should “travel” to other regulatory areas.

Conference: Reparations in the Inter-American System: A Comparative Approach Conference

Ignacio Alvarez et al. — Thu, 25 Oct 2012 11:30:30 PDT

This publication will enhance the understanding of what we call the law of reparations, developed in the Inter-American Court and Commission of Human

Rights. Reparations have a special meaning for the victims of human rights violations and, in particular, the victims of mass and gross violations that took place in this hemisphere during the twentieth century. For those victims and their family members, reestablishing the rights as if no violation had occurred is not possible. Accordingly, to them, avoiding the repetition of those violations in the future is of paramount importance. In achieving that goal, what the victims want is the investigation and punishment of those who appear guilty as an essential component of the law of compensation. Material and moral damages, symbolic measures of redress, as well as legislative changes when needed are also crucially important.

The inter-American system’s supervisory organs, within the limits of their jurisdiction, and in particular through the interpretation of Article 63 of the American Convention, have creatively developed the law of reparations within the Americas. As a result of the decisions from the supervisory organs, what has emerged is perhaps the most comprehensive legal regime on reparations developed in the human rights field in international law. This contains edited versions of speeches delivered at the conference.

Assessing Regional Cooperation: New Trends before the European Court of Human Rights and the European Court of Justice

Fernanda Nicola et al. — Thu, 25 Oct 2012 11:30:28 PDT

'Creatures of the State': Regulatory Federalism, Local Immunities, and EU Waste Regulation in Comparative Perspective

Fernanda Nicola — Thu, 25 Oct 2012 11:30:27 PDT

Family Law Exceptionalism in Comparative Law

Fernanda Nicola — Thu, 25 Oct 2012 11:30:26 PDT

Transatlanticisms: Constitutional Asymmetry and Selective Receptions of U.S. Law and Economics in the Formation of European Private Law

Fernanda Nicola — Fri, 14 Jan 2011 08:23:27 PST

The recurrent claim made by judges, scholars, and lawyers shaping the debate on European private law is that there is a constitutional asymmetry in the European Union (EU). The asymmetry lies in the fact that European Community competences mostly encompass market and economic matters at the expense of social issues, while Member States have full jurisdiction over social matters but only limited jurisdiction over economic matters. Thus, the European constitutional structure leads to a market/technocratic orientation in its supranational institutions, as opposed to the social/political orientation of Member State governments. The pervasiveness of this claim allows jurists critiquing European adjudication from both the Right and the Left to systematically claim that the European Court of Justice lacks democratic legitimacy to adjudicate particular cases on European contract or torts rules. Recently, European scholars, lawyers, and judges have departed from constitutional asymmetry claims. This article demonstrates that there are several factors that have played an important role in undermining the credibility of the constitutional asymmetry claim. First, the emergence of a well-established scholarship in European private law has raised awareness among academics and lawyers regarding the complexities of the process of harmonization of private law. Second, in light of a transatlantic legal dialogue, European jurists have increasingly received law and economics from the United States in a context that has been hermeneutically rich but increasingly ideologically divided. While the Right and mostly neoliberal scholars welcomed United States law and economics, the Left rejected it and promoted a social justice agenda for the internal market. Such selective reception of U.S. legal thought contributed to the radicalization of the debate over European private law. Ultimately, with the establishment of a European private law scholarship and the emergence of new academic debates, which are increasingly ideologically divided, lawyers and scholars are frequently departing from constitutional asymmetry claims; instead, they are evaluating the consequences the European Court of Justice’s decisions on their own terms.

Reparations: A Comparative Perspective

Fernanda G. Nicola — Fri, 14 Jan 2011 08:23:26 PST

This article focuses on the treatment of reparations in recent jurisprudence of the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ). In the so-called “prisoner cases,” Assanidze v. Georgia and Ilascu and Others v. Moldova and Russia, the ECHR moved beyond its previously limited approach to reparations by finding that continued detention of the lawsuit applicants would entail a prolonged violation of the Convention for the Protection of Human Rights and Fundamental Freedoms and then asking the States to immediately release the prisoners. The author then turns to ECJ immigration cases Zhu v. Sec’y of State for the Home Department and Jia v. Migrationsverket, in which the Court held that third country nationals have the right to stay in a member state of the European Union. The author shows that both courts addressed the issue of reparations in light of the restoration of rights by bringing the States into compliance with their treaty obligations. Both courts also demonstrated their willingness to move beyond mere monetary damages when dealing with reparations for the violation of fundamental rights by either directly addressing the States in order to force them to take action to stop the human right violation, or by indirectly modifying domestic immigration law regimes.

A 'Social Dimension' in European Private Law? The Call for Setting a Progressive Agenda

Ugo Mattei et al. — Sun, 31 Jan 2010 06:44:24 PST

I. The Europeanization of Private Law: Legal Sources, Ideology and Process: 1. Legal Sources in European Private Law. 2. Technocracy at work: What is the Common Frame of Reference? 3. The Ideological Divide: Neo-liberalism versus Social Justice in European Contract law. 4. The Social Justice Manifesto and the Legitimacy of the Process. 5. The Scholarly Industry and its Dark Sides.

II. Social contract law and Social Europe, part of the problem or part of the solution?: 1. The "Social" Critique of Formalism in Contract Law and its historical inadequacy. 2. The Critique of the Social and its erasure in the Manifesto. 3. Social Europe: A Solution or a Competitive Hegemonic Project? 4. Social Europe versus Socialist Europe.

III. Setting a Progressive Agenda in European Private Law: 1. Re-politicizing the Process. 2. Toward a Transformative Agenda for European Private Law. 3. Restructuring the Field: Constitutions and Codes. 4. Restructuring the Field: Whose Access to Justice? 5. Diversity and Distribution: Why should we care?

Promises of Accession: Reassessing the Trade Relationship Between Turkey and the European Union

Fernanda G. Nicola — Sun, 31 Jan 2010 06:44:21 PST

This Article reassesses the Turkey-European Union trade relationship in light of the doctrine of promissory estoppel. It argues that the European Court of Justice (ECJ) in Yedaş Tarim should have used more explicitly the doctrine of promissory estoppel as an equitable device to create liability for the potential detriment suffered by Turkey in relying on the promises made by Brussels. Through an overview of Turkey-European Union (E.U.) relations from the early 1950s until today, with particular attention to accession negotiations and the trade relationship between Turkey and the European Economic Community, this Article highlights the anomalous trade context that characterizes the unbalanced Turkey-E.U. relationship. The Author suggests understanding the Yedas Tarim litigation as a response to the disappointment of the Turkish elites, especially the ones who were most committed to Turkish membership in the European Union. While the Luxembourg courts might not be the most appropriate fora to clarify the costs and benefits of the E.U.-Turkey trade relationship, in Yedaş Tarim, the Courts lost the opportunity to assess the existence of major imbalances created by the obligations in the overall trade regime between Turkey and the E.U. By focusing on the reasons of the Turkish distrust towards Brussels, Yedaş Tarim marks an important shift of perspective towards the current debate on the Turkish membership to the E.U. In this respect, the Author suggests reassessing the macro-economic implications created by the Ankara Agreement, the Customs Union between the E.U. and Turkey and the promises of accession by Brussels vis à vis Turkish legal and political elites, local businesses at home and immigrant workers in Europe.

Constitutionalizing Tobacco: The Ambivalence of European Federalism

Fernanda Nicola — Fri, 06 Nov 2009 15:10:32 PST

The Treaty Establishing the European Community announces in EC TREATY art. 5.1. the principle that the powers of the European Community are limited to those specifically conferred on it. However, experience and judicial interpretation have shown that, in practice, the allocation of power between the Community decision maker and Member States is neither clear nor immutable.

In its Treaty Establishing a Constitution for Europe, the Community attempts to clarify the allocation of competences. Article III-278 of the Draft E.U. Constitution (Public Health Article) is a public health provision that expressly refers to the regulation of tobacco. To many, the Public Health Article reflects a shift toward European federalism by guaranteeing greater power to Member States over their national health regulations while limiting the power of the Community legislature. We argue that in reality, that this constitutionalization of tobacco does not guarantee Member States' autonomy. As long as the Community decision maker can standardize national tobacco laws whenever the functioning of the internal market is at stake, the Community will exercise some degree of control over States' national health standards. On the one hand, the Public Health Article can be used as a sword by the Community legislature, allowing intervention of a complementary and supportive nature. Community action may include monitoring, early warning of and combating serious cross-border threats to health. On the other hand, the Public Health Article may be used as a shield by States seeking to preserve their disparate public health standards. Because of this ambiguity, we argue that the Public Health provision remains open to interpretation and is susceptible to policy arguments made by either side. Consequently, the "constitutionalization" of tobacco fails to clarify the allocation of competences and provides little guidance in determining the substantive outcomes of pending disputes before the European Court of Justice.

A Social Dimension in European Private Law? The Call for Setting a Progressive Agenda

Fernanda Nicola et al. — Fri, 06 Nov 2009 15:08:58 PST

This Article aims to show what the political, rather than the technical stakes, are in the current debate over the harmonization of private law in Europe. Part One analyzes the main actors, the legal sources, the ideological divide, and the process animating the current debate on European private law. It sheds light on the incremental transformation of European private law in a scholarly industry. Part Two sheds light on the main obstacles and inconsistencies that jurists encounter in envisioning a Social private law. This section argues that the notion of the Social in private law scholarship as well as the idea of Social Europe is rarely a useful notion to articulate a progressive agenda for European private law. Finally, Part Three offers some modest proposals of the methodological and strategic nature on the possibilities and the limitations of setting a progressive agenda for European private law. We argue that a progressive agenda for European private law can be conceived today as a significant platform only by breaking with the current hegemonies and ideologies, as well as by unveiling the transformation of European private law into a scholarly industry.

In light of Antonio Gramsci's notion of a philosophy of praxis, we hope that this paper will spark further thoughts and self-criticism on current mainstream, progressive, and neo-liberal projects tackling the harmonization of private law in the European Union.

Promises of Accession: Reassessing the Trade Relationship between Turkey and the European Union

Fernanda Nicola — Fri, 06 Nov 2009 15:06:04 PST

This Article reassesses the Turkey-European Union trade relationship in light of the doctrine of promissory estoppel. It argues that the European Court of Justice (ECJ) in Yedaş Tarim should have used more explicitly the doctrine of promissory estoppel as an equitable device to create liability for the potential detriment suffered by Turkey in relying on the promises made by Brussels. Through an overview of Turkey-European Union (E.U.) relations from the early 1950s until today, with particular attention to accession negotiations and the trade relationship between Turkey and the European Economic Community, this Article highlights the anomalous trade context that characterizes the unbalanced Turkey-E.U. relationship. The Author suggests understanding the Yedaş Tarim litigation as a response to the disappointment of the Turkish elites, especially the ones who were most committed to Turkish membership in the European Union. While the Luxembourg courts might not be the most appropriate fora to clarify the costs and benefits of the E.U.-Turkey trade relationship, in Yedaş Tarim, the Courts lost the opportunity to assess the existence of major imbalances created by the obligations in the overall trade regime between Turkey and the E.U. By focusing on the reasons of the Turkish distrust towards Brussels, Yedaş Tarim marks an important shift of perspective towards the current debate on the Turkish membership to the E.U. In this respect, the Author suggests reassessing the macro-economic implications created by the Ankara Agreement, the Customs Union between the E.U. and Turkey and the promises of accession by Brussels vis à vis Turkish legal and political elites, local businesses at home and immigrant workers in Europe

Transatlanticism: The Trade in Legal Ideas in the Formation of European Private Law

fernanda g. nicola — Tue, 27 Feb 2007 19:29:35 PST

This article elucidates certain changes over the last decade in the way lawyers, judges and scholars addressed the question of codifying contracts and torts rules in European private law. I aim to demonstrate how the transatlantic trade in legal ideas helped alter the arguments made by lawyers engaged in the debate on European private law. Methodologically, this article departs from a timeworn comparative technique of emphasizing differences and similarities between rules and doctrines in United States and Europe. Rather, it focuses not only on the role played by legal doctrines, but also on the role of scholarly work, legal theories and ideologies in the reception and the production of legal thought on both sides of the Atlantic.