Monday, December 8, 2008

"Tracking Judicial Dialogue-The Scope for Preliminary Rulings from the Italian Constitutional Court"

Personal news:

Back in gertee after a month in Palmer. It's snowed about a foot since we left and I had to shovel a path to my woodpile before I could chainsaw a load. It's warm though, staying above zero, and yeah, that makes my life a lot easier.

If it stays warm Tim promised he'll hitch up a team and start teaching all his eager neighbors how to mush. He hooked me up with 4 dogs 2 years ago today but I haven't done it since. I'm determined to mush this winter and hoping one of his leads can train our Osa to pull. He doesn't think Osa will be worth anything but that's only because he breeds champion race dogs. We have to clear trails first and he's busy trapping, plus the fact that he doesn't have any sleds left cause he's been selling them along with the teams, so he has to make more now. The work never ends around here and I'd be better off learning to make my own sleds too.

I called him from Palmer before I left and he had to hang up because he was trying to find a spot with thick enough ice to cross the river. Then he told me he's seen lot of grizzly tracks, figures they're still out cause it's been so warm. Said there's a long stretch of deadfall where the riverbank caved in and that's where they like to make their dens. I went with him once to check beaver traps cause there were bears that time too, but I decided I'm just not that interested in trapping. But I do eat meat and love wearing fur, nothing warmer in my experience, and with a little effort I've found some good deals on fur coats on ebay, one was only 10 bucks because it had a few rips. Won it, sewed it tonight and think it'll make a fine bathrobe and extra blanket when it does get down to 50 below. I know it will, only a matter of when.

Serious leaking action with all the fresh snow on the roof, got 4 main drips with containers underneath them, and already have almost 3 gallons, which is enough to do the dishes! Saves me hauling it in and making me realize how important it is to figure out how to collect rainwater, at least in a more organized way. Once I put the new roof cover up the drips will stop, and I hope I never slack in that department ever again. I'm gonna have to change all the wall coverings and replace the carpet. My car is buried under 18 inches so I'll be digging it out before I'm going anywhere. Put the new woodstove together but it's taller than the one I borrowed from Ron so I need to get the tin cutters from Tim and adjust the stack height before I install it.

The Mercantile is still open, Lisa Boone leased it and will hopefully be buying it in the spring. We agreed to put the site back up and figure the bill out later. This means I will not starve over the winter as long as there is still food available in the stores. Well, I wouldn't starve anyway with my beans and rice stash, but I have an income source and am very grateful for that. I took advantage of the fast internet in Palmer and wrote several pages for the Merc's Adventure Highways portion. We have the go-ahead to start realizing the Vacation Packages business too. This is also good news for Camp Redingon and could be a big boost to local tourist providers next season. The State of Alaska Division of Tourism and Palin's Rural Economic Plans DO NOT include advertising and marketing local businesses UNLESS they are connected to the Parks. I think Kenny Lakers are being punished for flat-out rejecting Scenic ByWay designation. If you're a tourist going to Wrangell St. Elias National Park, this "red" state would prefer you only know about Wellwood Center (the local School of the Earth), WISE, and McCarthy-Kennicott Mine.

My research turned up some rude facts regarding the future of my neighborhood. There really is no place left in the USA that exists outside the plan. If there were such a place it would be here, but it's not. Free Alaska ended when Alaska joined the union (1958) and all the regulators arrived to stop people from living off the land, Fabian style. It was pretty mind blowing to see the official sites' "facts" as opposed to what I found in the Alaska state historical archives. It's so hard to separate me from my work; even though the Merc's site is not political at all, I still went into ACL mode writing the essay on Kenny Lake.

In ACL News:

New constitutions are required to give the new governing bodies legitimacy (and enforcement powers). Here are a couple examples of how law students in the USA are taught the concepts for Communitarian Law (called Community Law) and what judicial supremacy entails.

"Dear friends of the Jean Monnet Center,

"We are pleased to announce the online publication of the tenth paper in the 2008 Jean Monnet Working Paper series. We include the abstract of this paper below:

"Marco Dani, "Tracking Judicial Dialogue-The Scope for Preliminary Rulings from the Italian Constitutional Court"
(JMWP no. 10/08)

"In cases 102-103/2008 for the first time the Italian Constitutional Court has referred a question to the Court of Justice under the article 234 EC procedure. The article analyses this decision in light of previous contrary case law and argues that, insofar as supremacy will be construed according to the Simmenthal doctrine, the scope for preliminary ruling from that Constitutional Court will be rather narrow, as mainly limited to principaliter proceedings.

"Such a conclusion brings about an important theoretical implication. Constitutional Courts such as the Italian one will face difficulties in interacting directly with the Court of Justice and, notably, in conveying at supranational level the authentic versions of national constitutional traditions. Conversely, ordinary courts seem in a better position to play a similar role. As a consequence, if we want the Court of Justice to modify its octroyée methodology of construing common constitutional traditions, we have to place all our stakes on a judicial dialogue based on ordinary courts as the privileged interface between the EU and national constitutional environments.

"We invite you to access this Working Paper on the Jean Monnet Center website at"
A keyword search for the phrase "Simmenthal doctrine" leads back to a Jean Monnet working paper: ("6) Constitutional law and European integration":
"Political integration of constitutional states, including the fifteen members of the European Union, requires a constitutional basis. The constitution is the supreme affirmation of the primordial power of a people over themselves (as a collectivity), and over the space they occupy. The constitution organizes various branches of government, establishes the balance between them, and sets the limits of power by guaranteeing a set of fundamental rights against (public or private) trespass. From this source derive the legitimacy of power and the validity of the law it enacts. In short, the constitution "constitutes" the state by establishing it as a legal entity[26].

"Clearly, the process of integration profoundly transforms the states involved on a number of levels.

"By definition, integration involves a reduction in state sovereignty.[27] The extent of this reduction is pre-defined. It may be indefinitely increased either through reform of the founding Treaties, or, more informally, by the ever widening interpretation of the Treaties clauses establishingthe jurisdiction of Community bodies over member states. The tendency to increase the power of the Community, and consequently to limit that of the member states, is not a passing phase, nor is it attributable to power-hungriness among "Eurocrats" in Brussels. Rather, this tendency is structural - a necessary consequence of the telos of the system, which the Treaty of Maastricht defines as the search for "a more and more perfect union." As this formulation indicates, the process of integration is set on an infinite time scale without pre-defined techniques for determination and attribution of competencies to the Community.[28]

"This deliberate alteration of the status of member states, in turn, generates other changes, which are unavoidable if the integration process is to continue. First, integration changes the very structure of national legal systems. Logically, the submission of the State to the Community requires that Community law prevail over national law in the sphere of Community responsibilities. In each of the member states, the Community is source of a new law whose provisions prevail over domestic norms of any level. The supremacy of this new body of law liberates the national judges who must apply it from their duty of absolute submission to nation law, including national constitutional law, and, in effect, transforms them into Community judges. The main implication of this release is to allow national judges to escape in some measure the binding force of fundamental rights as defined in their respective national constitutions.[29]

"Secondly, the supremacy of Community law substantially modifies the formal subordination of governments to their respective Parliaments, whose principal consequence for the domestic legal orders of member states is the supremacy of statutes over delegated legislation and executive orders. The supremacy of "derived" or secondary Community law, made by the representatives of national governments in the Council of Ministers, turns upside down this relationship.

"Finally, integration also alters the balance established by national constitutions between the central government, and regional and local entities and organizations.

"Providing an adequate constitutional basis for a transformation of this magnitude is necessary for the states involved, since their own legitimacy would fall into doubt if changes were carried out in opposition to their respective constitutions. The Community is also in vital need of an articulated constitutional basis, given that it has only the power granted to it by its member states and its law exists only to the extent that national judges, whose decisions cannot be reviewed by the European Court of Justice, respect it.[30] Obviously, judges will not be able to respect Community law if its validity and its asserted primacy have no basis of support in the constitutions they are bound by oath to uphold."
And from Old Dog, here's a whole 'nother twist on the law, from the Harvard Law School Corporate Governance Blog (Obama's comrades in community arms):

No comments: