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Prof. Franz Werro - European Private Law: Quo Vadis?

European private law has been in the making for a number of decades. The main goal has been to serve the needs of the Single Market. Despite a variety of eorts to make national private laws converge, little unity has emerged. Nevertheless, the Single Market has survived and even grown. This talk oers a critical assessment of the EU’s achievements in the development of European
private law. It will examine how the ECJ has interpreted the EU Directives in key areas of contract and tort, and ask to what extent the case law of the European court has harmonized the law in these elds. The presentation will also reect on possible alternatives to the Directives, and question the meaning and need of codifying attempts such as the one proposed in the Law of Sales in
2011 (CESL). More generally, the talk will reect on legal and cultural diversity in Europe. In particular, it will ask how language determines the way we think, and whether one law can be expressed in more than language. As private law is an expression of culture, it may be that European private is impossible to achieve, as long as cultures remain dierent from one country to the other.

Prof. Frederick Schauer - Constitutionalism and its Costs

There are many conceptions of constitutionalism, and many aspects of it even within particular conceptions. But one important dimension of constitutionalism is the way in which constitutions impose second-order constraints on first-order policy, political, and moral preferences. Policies or decisions that might on the balance of reasons be wise may still be unconstitutional because they are procedurally imperfect or, more importantly, because they violate rights-based side constraints on otherwise advantageous policies. Even welfare- or happiness- or utility-maximizing policies may still be unconstitutional because they infringe on, for example, rights to equality, or rights of freedom of expression or freedom of religion, or the rights of those charged with crimes.

Sometimes constitutions impose such second-order constraints on first-order policies because of a concern with the long term rather than with what will be immediately beneficial. And sometimes constitutional constraints emerge from the recognition of fundamental individual human rights. But once we recognize that serious enforcement of constitutional constraints will lead to the invalidation of genuinely (at least in the short or intermediate term) wise or beneficial policies, we can understand that constitutionalism comes at some cost to the general welfare. Dealing with how such costs should be understood, recognized, and allocated is one of the most important yet least appreciated aspects of constitutionalism, and one of the problems that any robust constitutional culture must face.

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