This Article aims to examine the social media jurisprudence of national courts in a selected set of EU Member States by focusing on judicial dialogue specifically via references to the case law of other courts. Do judges in social media cases engage with the case law of peers, and if so how and to what extent? The analysis investigates whether national judges draw on the jurisprudence of higher domestic courts, foreign courts and/or European supranational courts—the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR)—and explores the use of such jurisprudence. It is based on 147 cases from the constitutional and/or supreme courts of Bulgaria, Croatia, Greece, Italy, Latvia, Slovakia, and Slovenia. Although judicial dialogue is generally limited in the cases under study, the analysis illustrates the different ways in which courts interact with the rulings of peers and informs on the latter’s contribution to judicial assessment.

In this Article we argue that rule of law indices are a powerful tool to detect ills in the rule of law of EU Member States. In order to explain how to improve the indices’ potential, we give a critical overview of the methodological issues of the four rule of law indices which we consider particularly instructive for our purpose. These are the indices provided by the Freedom House (“Freedom in the World,” FIW), the Bertelsmann Stiftung (“Bertelsmann Transformation Index,” BTI), the World Bank (“Worldwide Governance Indicators,” WGI), and the World Justice Project (“Rule of Law Index,” WJP RLI). After analyzing the strengths and weaknesses of these indices, we turn to the EU Justice Scoreboard (EUJS). While the introduction of the EUJS in 2013 has already been an important step in order to lay the ground for an EU-wide analysis, in this Article we suggest how the EUJS should be further developed into a proper rule of law index by aggregating expert opinions into a single number. This would make the EUJS a significantly more useful tool in the ongoing EU rule of law crisis.

European Union legislators, CJEU judges and EU law scholars have produced streams of texts which determine both what EU law is and how it is perceived. We explore what these distinct “voices” tell us about the EU’s legal and policy priorities using a mega corpus compiling more than 200,000 legislative acts, 55,000 court rulings and opinions, and 4,000 articles from a leading EU law journal. Applying an unsupervised machine learning technique known as probabilistic topic modelling, we find that economic integration remains the focus of EU law, but that scholars tend to emphasize rights issues more and ignore certain topics, such as farming regulations, almost entirely. The relationship among these partly interdependent, partly autonomous voices, we suggest, can be conceptualized in terms of co-evolution. Legislation influences issue attention on the CJEU, which, in turn, influences what law professors choose to write about.

This Article highlights the legal and procedural restrictions a Member States faces during its withdrawal from the EU and subsequent talks on a future trade relationship by analyzing the unprecedented case of the UK. One such restriction consists of an obligation to negotiate withdrawal as a result of the principle of sincere cooperation. Other limits derive from the withdrawal process itself, designed as it was by the European institutions on the basis of a very scant Article 50 TEU. By then comparing the three substantive pillars of the EU-UK WA—citizens’ rights, the financial settlement, and the Irish border— with the UK’s initial negotiating red lines, I offer two conclusions: That the aforementioned constraints on the withdrawing state can significantly weaken the defense of its interests during its withdrawal process and that having to agree to important issues in a first and separate stage of “orderly withdrawal” talks also diminishes the state’s bargaining power with regards to the next stage of negotiating a future partnership with the EU.

Today’s central banks wield extraordinary powers, both monetary and regulatory, and with a capacity to substitute for elected governments tempted to pass the buck. Debates about central banking’s powers and legitimacy barely touch, however, on whether and how monetary independence fits with the values that drive constitutionalism. It turns out that, for modern economies using fiat money, independence is a corollary of the higher level separation of (fiscal) powers between the legislative and executive branches. Even though independence is necessary, it needs to be carefully constrained by a “money-credit constitution.” Those general arguments, applicable in liberal democracies, do not carry across cleanly to the euro area. A principled case can be made for the ECB’s mandate being specially tight, but that is in tension with its de facto role as the emergency economic actor for the euro area. Facing up to that will be necessary sooner or later.

This special section tells the story of Covid-19 through the lens of national responses, serious concerns about unprecedented human rights limitations and infringements, and the respective role of courts in public health emergencies. It compiles perspectives on disease control developments in Brazil, Italy, Poland, Taiwan, the U.S., and the EU to explore various aspects of judicial review protecting, or failing to protect, human rights. It offers insights from states and regions which have experienced high pandemic rates or may attract attention for not treating human rights as a priority. Amidst the crisis of multilateralism and the World Health Organization (WHO) authority, and the fact that public health is typically a national power, the Articles focus on the state-level analyses to inspire comparative findings and further research. The section also draws on diversity and transdisciplinarity. The contributions are authored by scholars specializing in wide-ranging areas of law, including constitutional, health, private, and human rights law, as well as in political philosophy and public health. This text introduces the special section by offering a broader picture of the human rights’ problématique in times of pandemics.

Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve more protection than others, even in an emergency. This article analyzes ongoing litigation involving emergency restrictions on religious freedom and access to reproductive health services. These cases suggest that some judges are altering the standards of judicial review of the state’s emergency powers in ways that could permanently strengthen some rights and dilute others in normal circumstances.

Is the Covid-19 pandemic changing the constitutional-power structures of our democracies? Is this centennial public health emergency irreversibly constraining our liberties? The paper examines recent state-measures of containment during the initial phase of spread of the Covid-19 crisis. It compares primarily the Italian scenario with the Chinese and the American one. It asks whether the measures adopted particularly in the Italian case (known as DPCMs) amount to a state of exception or to a use of emergency powers. Cognizant of the authoritarian risks in severed enjoyments of constitutional rights, the authors conclude that this is not what occurred in the case of solid democracies. At the level of governmental analysis, the “decree” strategy of the Italian DPCMs allude to paternalistic forms of power-exercise that empty the self-determining prerogative of the parliament.

This article examines the relationship between reproductive rights, democracy, and the rule of law in transitional societies. As a case study, it examines the development of abortion law in Poland. The article makes three primary claims. First, it argues that the relationship between reproductive rights and the rule of law in Poland came clearly into view through the abortion judgment K 1/20, handed down by the Constitutional Tribunal in the middle of the COVID-19 pandemic. The judgment and the context in which it was issued and published are interpreted as reflections of deep-lying processes and problems in Polish society. Consequently, second, the article argues that analysis of the history of reproductive rights in recent decades in Poland reveals weak institutionalization of the rule of law. This is manifest in the ways in which different professional groups, especially doctors and lawyers, have addressed questions regarding abortion law. Therefore, third, the article argues that any assessment of the rule of law should take into account how powerful professional actors and organizations interact with the law. The Polish case study shows that reproductive rights should be seen as important parts of a “litmus test,” which we can use to examine the efficacy of democratic transitions and the quality of the democracies in which such transitions result.

Looking into these times of neoconservatism in Brazil, marked by a far-right agenda and populism, this Article explores the role of vulnerability (as a legal theory, a legal principle or factual consideration) in the litigation prompted by the pandemic in Brazil. The usages of vulnerability as a form of resistance to the denial of their identity and vulnerable condition show that vulnerability can take different forms through litigants and may have an independent meaning to what is defined in legal theory or law. This is most evident by the fact that litigants dispute government policies based on ideologies that contest their identities (and not merely their vulnerability). Four case studies substantiate this Article with lawsuits brought to higher courts by judicially active groups: prisoners, indigenous people, Afro-Brazilian ethnic communities and gig economy drivers. They are what I call “undeserving vulnerables”, groups discriminated from a legally recognized vulnerable group through attacks to their identity.

Driven by the need to address the immediate public health threats of the COVID-19 pandemic, this has seen a rise of the technocratic mode of governance around the world. A technocratic approach is evidence-based and relies upon the guidance of experts to respond to the public health crisis. The rise of technocracy reflects a utilitarian calculus that seeks to preserve the greater good. Taiwan’s pandemic response exemplifies the strengths and weaknesses of this type of governance. Based on an analysis of the relevant case law of the Taiwan Constitutional Court, legislation, and political developments this Article takes a legal-historical look and traces the current technocratic approach—defined for this Article as an experts-driven and procedural-driven process—which is a hallmark of Taiwan’s pandemic response. Examining Taiwan’s pandemic response through a human rights lens sheds light on a more complex relationship between the collective right to health and life, and the individual rights to health, work, privacy, and liberty during the pandemic.

The purchase of Covid-19 vaccines by the EU Commission as agent for the Member States has caused substantial political discussion, including a lawsuit against the producer AstraZeneca in Brussels in 2021. The article looks at these purchase contracts as examples for a problematic use of “best efforts“ clauses in commercial contracting, considering some key jurisdictions. The clauses are discussed from a drafting perspective, including their function and their theoretical background in comparative law. It concludes with a primer for the drafting process, looking at some basic contracting schemes for softening or intensifying obligations.