Alec Sweet | Yale University (original) (raw)
Papers by Alec Sweet
As institutions and governance structures develop in modern markets, they tend to "feed back" ont... more As institutions and governance structures develop in modern markets, they tend to "feed back" onto economic activity. Through such feedback loops, market and political arenas can develop symbiotically into relatively coherent "fields" that gradually embed actors' orientations and activities. Using these insights, this article develops and tests a theory of European integration focusing on the case of the European Community, the first pillar of the European Union. Traders, organized interests, courts, and the EC's policy-making organs, over time, have produced a self-sustaining causal system that has driven the construction of the European market and polity. The generality of this explanation to a sociology of markets and polity-building projects is discussed in the conclusion.
Nico Krisch's new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (B... more Nico Krisch's new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (BC), is a major contribution to the field of legal pluralism as applied to international legal regimes. 1 In clear and accessible prose, BC develops a nuanced account of the structural features of global law from a wide range of carefully considered normative positions and empirical claims, and provides detailed case studies of pluralism in action. For readers of I·CON, I would regard it as essential reading.
The European Convention on Human Rights is rapidly evolving into a cosmopolitan legal order: a tr... more The European Convention on Human Rights is rapidly evolving into a cosmopolitan legal order: a transnational legal system in which all public offi cials bear the obligation to fulfi ll the fundamental rights of every person within their jurisdiction. The emergence of the system depended on certain deep, structural transformations of law and politics in Europe, including the consolidation of a zone of peace and economic interdependence, of constitutional pluralism at the national level, and of rights cosmopolitanism at the transnational level. Framed by Kantian ideas, the paper develops a theoretical account of a cosmopolitan legal system, provides an overview of how the ECHR system operates, and establishes criteria for its normative assessment.
United States, focusing on the problem of balancing. In the current Supreme Court, deep conflict ... more United States, focusing on the problem of balancing. In the current Supreme Court, deep conflict over whether, when, and how courts balance rights is omnipresent. Elsewhere, we find that the world's most powerful constitutional courts have embraced a stable analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part I provides an overview of how constitutional judges in other systems use PA, assesses the costs and benefits of adopting it, and contrasts proportionality with American strict scrutiny. Part II recovers the foundations of proportionality in American rights review, focusing on two critical junctures: (1) the emergence of a version of PA in dormant Commerce Clause doctrine in the late nineteenth century, the core of which persists today; and (2) the consolidation of the strict scrutiny framework in the mid-twentieth century. Part III demonstrates that the "tiered review" regime chronically produces pathologies that have weakened rights protection in the United States and undermined the coherence of the Supreme Court's rights jurisprudence. PA, while not a cure-all for the challenges faced by rights-protecting courts, avoids these pathologies by providing a relatively systematic, transparent, and trans-substantive doctrinal structure for balancing. We also show that all three levels of review-rational basis, intermediate review, and strict scrutiny-have, at various points in their evolution, contained core elements of proportionality. In Part IV, we argue that the Supreme Court can and should cultivate a version of PA rooted in American constitutional traditions and values.
I n an article previously published by the APSR, Carrubba, Gabel, and Hankla claim that the decis... more I n an article previously published by the APSR, Carrubba, Gabel, and Hankla claim that the decision making of the European Court of Justice (ECJ) has been constrained-systematically-by the threat of override on the part of member state governments, acting collectively, and by the threat of noncompliance on the part of any single state. They also purport to have found strong evidence in favor of intergovernmentalist, but not neofunctionalist, integration theory. On the basis of analysis of the same data, we demonstrate that the threat of override is not credible and that the legal system is activated, rather than paralyzed, by noncompliance. Moreover, when member state governments did move to nullify the effects of controversial ECJ rulings, they failed to constrain the court, which continued down paths cleared by the prior rulings. Finally, in a head-to-head showdown between intergovernmentalism and neofunctionalism, the latter wins in a landslide.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, a... more JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
West European Politics, 2002
Journal of European Public Policy, 2006
Over the past four decades, the transnational business community has successfully built a private... more Over the past four decades, the transnational business community has successfully built a private system of transnational governance: the new Lex Mercatoria. The actors who operate this system -firms, their lawyers, international arbitrators, and legal academics -have evolved, and use, 'a-national' principles of contract and a system of private 'courts' to organize and regulate cross-border commercial exchange. National legal systems have adapted to the Lex Mercatoria, thereby enhancing the latter's autonomy, and the EU has begun to move in the same direction.
Journal of European Public Policy, 1997
European Law Journal, 2000
We hope to stimulate more systematic research on all areas of legal integration by making availab... more We hope to stimulate more systematic research on all areas of legal integration by making available for free and open use a comprehensive data base on preliminary references in EC law. The Data Set, which has been under construction since 1996, is now online at various websites. The data are not publicly accessible elsewhere. In this article, we provide a brief summary of the data base and its potential uses. We begin by introducing the main features of the Data Set. We then discuss some of the dynamics of legal integration in light of our analyses of the data.
Journal of European Public Policy, 1998
We seek to explain the transfer of competence to govern, from national to supranational authoriti... more We seek to explain the transfer of competence to govern, from national to supranational authorities, in air transport. We ask two questions. First, how and why did air transport come on to the European legislative agenda? Second, why did member state governments agree to divest themselves of control at the national level? In responding to these questions, we at times focus on the Council of Ministers, and therefore on intergovernmental stages of the legislative process. Such a focus, however, need not entail adopting intergovernmentalist theories of integration. On the contrary, our case study broadly supports theoretical arguments developed by Stone Sweet and Sandholtz (1997), and corroborates recent research on the origins and evolution of supranational governance. We find that the intensity of transnational exchange and the pro-integrative behaviour of the European Community's (EC's) supranational organizations not only generated the context in which intergovernmental bargaining took place, but provoked the emergence of supranational governance.
Indiana Journal of Global Legal Studies, 2009
The international legal order, although pluralist in structure, is in the process of being consti... more The international legal order, although pluralist in structure, is in the process of being constitutionalized. This article supports this claim in several different ways. In the Part I, I argue that most accepted understandings of "constitution" would readily apply to at least some international regimes. In Part II, I discuss different notions of "constitutional pluralism," and demonstrate that legal pluralism is not necessarily antithetical to constitutionalism. In fact, one finds a great deal of constitutional pluralism within national legal orders in Europe. Part III puts forward
The Review of Politics, 1994
Icon-international Journal of Constitutional Law, 2007
Jcms: Journal of Common Market Studies, 2012
As institutions and governance structures develop in modern markets, they tend to "feed back" ont... more As institutions and governance structures develop in modern markets, they tend to "feed back" onto economic activity. Through such feedback loops, market and political arenas can develop symbiotically into relatively coherent "fields" that gradually embed actors' orientations and activities. Using these insights, this article develops and tests a theory of European integration focusing on the case of the European Community, the first pillar of the European Union. Traders, organized interests, courts, and the EC's policy-making organs, over time, have produced a self-sustaining causal system that has driven the construction of the European market and polity. The generality of this explanation to a sociology of markets and polity-building projects is discussed in the conclusion.
Nico Krisch's new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (B... more Nico Krisch's new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (BC), is a major contribution to the field of legal pluralism as applied to international legal regimes. 1 In clear and accessible prose, BC develops a nuanced account of the structural features of global law from a wide range of carefully considered normative positions and empirical claims, and provides detailed case studies of pluralism in action. For readers of I·CON, I would regard it as essential reading.
The European Convention on Human Rights is rapidly evolving into a cosmopolitan legal order: a tr... more The European Convention on Human Rights is rapidly evolving into a cosmopolitan legal order: a transnational legal system in which all public offi cials bear the obligation to fulfi ll the fundamental rights of every person within their jurisdiction. The emergence of the system depended on certain deep, structural transformations of law and politics in Europe, including the consolidation of a zone of peace and economic interdependence, of constitutional pluralism at the national level, and of rights cosmopolitanism at the transnational level. Framed by Kantian ideas, the paper develops a theoretical account of a cosmopolitan legal system, provides an overview of how the ECHR system operates, and establishes criteria for its normative assessment.
United States, focusing on the problem of balancing. In the current Supreme Court, deep conflict ... more United States, focusing on the problem of balancing. In the current Supreme Court, deep conflict over whether, when, and how courts balance rights is omnipresent. Elsewhere, we find that the world's most powerful constitutional courts have embraced a stable analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part I provides an overview of how constitutional judges in other systems use PA, assesses the costs and benefits of adopting it, and contrasts proportionality with American strict scrutiny. Part II recovers the foundations of proportionality in American rights review, focusing on two critical junctures: (1) the emergence of a version of PA in dormant Commerce Clause doctrine in the late nineteenth century, the core of which persists today; and (2) the consolidation of the strict scrutiny framework in the mid-twentieth century. Part III demonstrates that the "tiered review" regime chronically produces pathologies that have weakened rights protection in the United States and undermined the coherence of the Supreme Court's rights jurisprudence. PA, while not a cure-all for the challenges faced by rights-protecting courts, avoids these pathologies by providing a relatively systematic, transparent, and trans-substantive doctrinal structure for balancing. We also show that all three levels of review-rational basis, intermediate review, and strict scrutiny-have, at various points in their evolution, contained core elements of proportionality. In Part IV, we argue that the Supreme Court can and should cultivate a version of PA rooted in American constitutional traditions and values.
I n an article previously published by the APSR, Carrubba, Gabel, and Hankla claim that the decis... more I n an article previously published by the APSR, Carrubba, Gabel, and Hankla claim that the decision making of the European Court of Justice (ECJ) has been constrained-systematically-by the threat of override on the part of member state governments, acting collectively, and by the threat of noncompliance on the part of any single state. They also purport to have found strong evidence in favor of intergovernmentalist, but not neofunctionalist, integration theory. On the basis of analysis of the same data, we demonstrate that the threat of override is not credible and that the legal system is activated, rather than paralyzed, by noncompliance. Moreover, when member state governments did move to nullify the effects of controversial ECJ rulings, they failed to constrain the court, which continued down paths cleared by the prior rulings. Finally, in a head-to-head showdown between intergovernmentalism and neofunctionalism, the latter wins in a landslide.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, a... more JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
West European Politics, 2002
Journal of European Public Policy, 2006
Over the past four decades, the transnational business community has successfully built a private... more Over the past four decades, the transnational business community has successfully built a private system of transnational governance: the new Lex Mercatoria. The actors who operate this system -firms, their lawyers, international arbitrators, and legal academics -have evolved, and use, 'a-national' principles of contract and a system of private 'courts' to organize and regulate cross-border commercial exchange. National legal systems have adapted to the Lex Mercatoria, thereby enhancing the latter's autonomy, and the EU has begun to move in the same direction.
Journal of European Public Policy, 1997
European Law Journal, 2000
We hope to stimulate more systematic research on all areas of legal integration by making availab... more We hope to stimulate more systematic research on all areas of legal integration by making available for free and open use a comprehensive data base on preliminary references in EC law. The Data Set, which has been under construction since 1996, is now online at various websites. The data are not publicly accessible elsewhere. In this article, we provide a brief summary of the data base and its potential uses. We begin by introducing the main features of the Data Set. We then discuss some of the dynamics of legal integration in light of our analyses of the data.
Journal of European Public Policy, 1998
We seek to explain the transfer of competence to govern, from national to supranational authoriti... more We seek to explain the transfer of competence to govern, from national to supranational authorities, in air transport. We ask two questions. First, how and why did air transport come on to the European legislative agenda? Second, why did member state governments agree to divest themselves of control at the national level? In responding to these questions, we at times focus on the Council of Ministers, and therefore on intergovernmental stages of the legislative process. Such a focus, however, need not entail adopting intergovernmentalist theories of integration. On the contrary, our case study broadly supports theoretical arguments developed by Stone Sweet and Sandholtz (1997), and corroborates recent research on the origins and evolution of supranational governance. We find that the intensity of transnational exchange and the pro-integrative behaviour of the European Community's (EC's) supranational organizations not only generated the context in which intergovernmental bargaining took place, but provoked the emergence of supranational governance.
Indiana Journal of Global Legal Studies, 2009
The international legal order, although pluralist in structure, is in the process of being consti... more The international legal order, although pluralist in structure, is in the process of being constitutionalized. This article supports this claim in several different ways. In the Part I, I argue that most accepted understandings of "constitution" would readily apply to at least some international regimes. In Part II, I discuss different notions of "constitutional pluralism," and demonstrate that legal pluralism is not necessarily antithetical to constitutionalism. In fact, one finds a great deal of constitutional pluralism within national legal orders in Europe. Part III puts forward
The Review of Politics, 1994
Icon-international Journal of Constitutional Law, 2007
Jcms: Journal of Common Market Studies, 2012