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Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

Call for Nominations: Richard M. Buxbaum Prize for Teaching in Comparative Law

Richard Albert, Boston College Law School

Call for Nominations
Richard M. Buxbaum Prize for Teaching in Comparative Law

The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) invites nominations, including self-nominations, for the first annual Richard M. Buxbaum Prize for Teaching in Comparative Law.

The YCC created the Buxbaum Prize in the summer of 2014 in honor of Professor Richard M. Buxbaum, the 2014 recipient of the ASCL Lifetime Achievement Award. Professor Buxbaum is the Jackson H. Ralston Professor of International Law (emeritus) at the University of California, Berkeley.

The Buxbaum Prize for Teaching in Comparative Law is awarded independently by the YCC in recognition of teaching excellence in any subject of comparative public or private law by an untenured scholar in a tenure-track position at an ASCL Member Institution.

The Buxbaum Prize will be awarded at the Fourth Annual YCC Global Conference, scheduled this year for April 16-17, 2015, at Florida State University College of Law in Tallahassee, Florida.

Nominations

Nominations will be accepted by tenured professors currently teaching at an ASCL Member Institution. Self-nominations by untenured professors will also be accepted. Nominations should be emailed by 12:00pm EST on January 19, 2015, to buxbaumprizenominations@gmail.com.

Nominations should include the nominee’s name, institutional affiliation, contact information, field of scholarly interest in comparative law, and relevant course syllabi. Nominations should also include a statement attesting to the nominee’s teaching excellence. Nominations may also include teaching evaluations.

Questions may be directed to Ioanna Tourkochoriti, YCC Director of Advisory Groups, at ioannatourkochoriti@gmail.com.

About the YCC

The YCC serves as a forum for younger comparative law scholars with ten years or fewer of faculty experience, creates opportunities for younger comparativists to develop and share their research, and facilitates and promotes the scholarly exchange of ideas and research in all areas of comparative law. The YCC also hosts an annual global conference in comparative law and advises the ASCL in its activities related to younger comparativists. More information on the YCC and the ASCL is available at www.ascl.org.

YCC Board

Richard Albert (Boston College) (Chair)
Virginia Harper Ho (Kansas)
Wulf Kaal (St. Thomas—Minneapolis)
Sudha Setty (Western New England)
Ozan Varol (Lewis & Clark) (Vice Chair)

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Published on November 26, 2014
Author:          Filed under: Developments
 

Video Interview: Courts and Constitution-Making Featuring Will Partlett

Richard Albert, Boston College Law School

In this installment of our new video interview series at I-CONnect, I interview Will Partlett on the role of courts in constitution-making.

In the interview, we discuss constitution-making in general, his recent work on constitution-making in Russia and post-communist countries, as well as the relationship between political culture and constitutional structure. We also explore how to conceptualize a democratically legitimate role for courts in the process of constitution-making.

Will Partlett is an Associate Professor at the Faculty of Law at the Chinese University of Hong Kong. He writes in the fields of comparative constitutional and criminal law, with a particular interest in how law can be used to undermine human rights and erode pluralistic democratic governance in transitional societies. He holds degrees from Princeton, Stanford and Oxford.

The full interview runs 31 minutes, and is available here.

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Published on November 25, 2014
Author:          Filed under: Analysis
 

What’s New in Comparative Public Law

Patrick Yingling, Reed Smith LLP

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the comparative public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Comparative Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The U.S. Supreme Court was asked to review same-sex marriage cases from Kentucky and Michigan following a U.S. Court of Appeals for the Sixth Circuit ruling that upheld bans.
  2. A Hong Kong court notice ordering authorities to start clearing protest sites that have been occupied for seven weeks was published in leading newspapers.
  3. The question of whether Canada’s Métis and non-status Indians have a right to the same programs and services as First Nations and Inuit has fallen to the country’s Supreme Court.
  4. The U.K. Supreme Court will consider whether the government was entitled to override a court and block the disclosure of letters sent by Prince Charles to ministers in which he sought to influence official policies.
  5. The U.S. Court of Appeals for the Fifth Circuit upheld a Mississippi campaign finance law that requires disclosure of political contributions.

In the News

  1. Speaker of the Myanmar Pyithu Hluttaw, Thura U Shwe Mann, announced that no amendments will be made to the constitution until after next year’s elections, creating confusion for opposition parties.
  2. Japan Prime Minister Shinzo Abe has dissolved the lower house of parliament, enabling an early election to see how the public views his struggling economic policies.
  3. U.S. President Barack Obama announced executive action on immigration that would allow 4.7 million undocumented immigrants to stay in the United States.
  4. The Constitutional Council of France approved a law that sets out a procedure for removing the president from office in cases where there has been a “breach of their duties that is clearly incompatible with the exercise of their mandate.”
  5. Mexico’s government has vowed to take action to restore the credibility of institutions after the disappearance of 43 students more than two months ago.

New Scholarship

  1. Tamir Moustafa, Law and Courts in Authoritarian Regimes, Annual Review of Law and Social Science, Vol. 10 (2014) 281-299 (examining the ways in which law and courts are deployed as instruments of governance, how they structure state-society contention, and the circumstances in which courts are transformed into sites of active resistance)
  2. Yaniv Roznai, The Insecurity of Human Security, Wisconsin International Law Journal, Vol. 32, No. 1, 2014 (clarifying the distinctions between national security and human security, and demonstrating how this term—“human security”—cuts across the familiar dichotomy between human rights and security by approaching subjects that were typically the concern of human rights discourse through a security prism)
  3. Dawood I. Ahmed & Moamen Gouda, Measuring Constitutional Islamization: The Islamic Constitutions Index, Hastings International and Comparative Law Review, Forthcoming (exploring the universe of constitutional clauses that incorporate Islam and measuring and ranking Muslim countries’ constitutions based on their Islamicity)
  4. David Schleicher, Things Aren’t Going That Well Over There Either: Party Polarization and Election Law in Comparative Perspective, University of Chicago Legal Forum, Vol. 2015, Forthcoming (arguing that a common shift in voter preferences towards more radical and fundamentalist opinion among even a small slice of the electorate can explain polarization in the United States and changes in politics abroad)
  5. Jenia Iontcheva Turner, The Exclusionary Rule as a Symbol of the Rule of Law, Southern Methodist University Law Review, Vol. 67, 2014 (comparing approaches to the exclusionary rule and concluding with tentative predictions about the future of the rule in the United States and in new democracies)

Elsewhere Online

  1. Lissa Griffin, Prosecutorial Discretion Revisited: Charging, Comparative Law Prof Blog
  2. Andrea Pin, Tearing Down Sovereign Immunity’s Fence–The Italian Constitutional Court, the International Court of Justice, and the German War Crimes, Opinio Juris
  3. Prashant Jha, Nepal’s Constitution making: Bringing consensus back to Kathmandu, ConstitutionNet
  4. James Hand & Donal Coffey, Miliband’s senate of the regions and a constitutional convention conundrum, UK Constitutional Law Association
  5. Will Baude, The danger of signing unconstitutional laws, The Volokh Conspiracy
  6. Rosalind English, Irish Supreme Court struggles with outcome of surrogacy arrangements, UK Human Rights Blog
  7. Nathan Gardels, Weekend Roundup: Is China Outpacing Mexico on the Rule of Law?, The World Post

Calls for Papers

  1. The editors of the Cambridge Journal of International and Comparative Law and Hart Publishing have issued a call for papers for the Journal’s 4th annual conference to be held at the University of Cambridge on 8–9 May 2015.
  2. The Editorial Board of Biodiritto has launched, in occasion of the third issue of the journal, a call for papers dedicated to “Freedom of Scientific Research and Drug Testing.”
  3. The Younger Comparativists Committee of the American Society of Comparative Law has issued a call for participants for one (1) YCC scholar to attend a conference on “Access to Counsel During Criminal Proceedings:  Reshaping Rights and Remedies,” to be held on May 18-20, 2015, at the University of Warwick School of Law in England.
  4. Organizers have issued a call for papers for the 10th Annual Carleton Law and Legal Studies Graduate Conference on “Heroes and Villains: Imaginaries of Justice,” to be held on March 13, 2015, at Carleton University, in Ottawa, Canada.
  5. Dr. Shana Cohen of the Woolf Institute in Cambridge, United Kingdom has issued a call for papers for a workshop on “Minorities and Popular Culture in the Modern Middle East”
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Published on November 24, 2014
Author:          Filed under: Developments
 

Should Prisoners Have the Right to Assisted Suicide?

Michèle Finck, University of Oxford

Recently, a Belgian inmate, convicted of murder and rape, received a lethal injection. Most Europeans would feel nothing short of a shock when reading these lines. After all, the death penalty has been abolished in most European States in the aftermath of WWII, and is now outlawed by Protocol No. 6 to the ECHR. Belgium did not however breach any of its international obligations – rather it gave way to the inmate’s request to be euthanized.

The Belgian case raises a number of interesting questions in the context of a wider debate about euthanasia, a practice that has been legalized in a number of jurisdictions in recent years. Further, a number of countries, such as Canada and the UK, are currently debating whether assisted suicide should be legal. No doubt, euthanasia is a live issue in many jurisdictions at this moment in time. An aspect that is rarely addressed in the context of such debates however is the status of prisoners. This question, delicate as it may be, forces an evaluation of the circumstances in which it is ethically permissible to end one’s life.

Read the rest of this entry…

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Published on November 21, 2014
Author:          Filed under: Analysis
 

The Internet Tax Debate: Genuine Freedom of Assembly vs. the Illusion of Direct Democracy in Hungary

Zoltán Pozsár-Szentmiklósy, ELTE University, Budapest

On October 21, 2014, Hungarian government officials announced that in the 2015 state budget they would include a tax on internet data transfer. This so-called internet tax was widely criticized in the media and in civil society. A rapidly growing protest movement was organized on Facebook and a demonstration took place on October 26 in Budapest. The protest was suprisingly widely supported; several thousand protesters participated. The protesters expressed a clear message to the Government: they expected state officials to withdraw their proposal, otherwise after two days another demonstration would follow.

Due to the fact that there was no change in the official communication of the Government, two days later another demonstration was organised in Budapest and in several other cities. In the capital people gathered together in surprisingly large numbers (in the tens of thousands). According to them, the planned tax was a restriction of their freedom to access all relevant information related to private and public life. The organizers of the peaceful demonstration have also stated that their intention is to stand against the arbitrary legislation proposed by the Government. In this regard it is important to note that the freedom of information is a prerequisite for genuine and open debates related to public matters – an essential value of democracy itself.

Although the Government continued to refuse to give any reasonable explanation to the public regarding the new tax, three days later the prime minister announced that the Government would withdraw the proposal. The main argument expressed was that the governing party wants to govern together with the people, so there will be no decision which people don’t support. The prime minister also expressed his will to initiate a so called national consultation about the regulation related to the internet.

How can we assess all of these developments from the point of view of constitutional law? Read the rest of this entry…

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Published on November 19, 2014
Author:          Filed under: Developments
 

Video Interview: “Bills of Rights in the Common Law” Featuring Robert Leckey

Richard Albert, Boston College Law School

In this installment of our new video interview series at I-CONnect, I interview Robert Leckey on his forthcoming book entitled “Bills of Rights in the Common Law,” to be published by Cambridge University Press in May 2015.

Here is the book’s abstract:

Scholars have addressed at length the ‘what’ of judicial review under a bill of rights–scrutinizing legislation and striking it down–but neglected the ‘how’. Adopting an internal legal perspective, Robert Leckey addresses that gap by reporting on the processes and activities of judges of the highest courts of Canada, South Africa and the United Kingdom as they apply their relatively new bills of rights. Rejecting the tendency to view rights adjudication as novel and unique, he connects it to the tradition of judging and judicial review in the Commonwealth and identifies respects in which judges’ activities in rights cases genuinely are novel – and problematic. Highlighting inventiveness in rights adjudication, including creative remedies and guidance to legislative drafters, he challenges classifications of review as strong or weak. Disputing claims that it is modest and dialogic, he also argues that remedial discretion denies justice to individuals and undermines constitutional supremacy.

In the interview, we discuss what prompted this new inquiry into judicial review, why he chose as his case studies Canada, South Africa and the United Kingdom, how his book is distinguishable from other works in the field, notably by Stephen GardbaumJanet Hiebert and Mark Tushnet, and what he hopes readers will take away from his book.

Robert Leckey is an Associate Professor and William Dawson Scholar at McGill University, Faculty of Law, where he also directs the Paul-André Crépeau Centre for Private and Comparative Law. He teaches constitutional law and family law. A former law clerk for Justice Michel Bastarache of the Supreme Court of Canada, he holds degrees from Queen’s University, McGill and the University of Toronto. Leckey has earned many scholarly distinctions including the Prix de la Fondation du Barreau du Québec (2007), the Canadian Association of Law Teachers’ Scholarly Paper Prize (2009), the McGill Law Students’ Association’s John W. Durnford Teaching Excellence Award (2009), the Canada Prize of the International Academy of Comparative Law (2010), and the Principal’s Prize for Excellence in Teaching (2010).

The full interview runs 16 minutes, and is available here.

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Published on November 18, 2014
Author:          Filed under: Reviews
 

What’s New in Comparative Public Law

–Margaret Lan Xiao, Washington University in St. Louis

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the comparative public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Comparative Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts:

  1. Armenia: The Constitutional Court endorses the constitutionality of the country’s accession to the Eurasian Economic Union.
  2. Turkey: Constitutional Court rules that some civil servants and institutions accused of biased and unjust behavior in handling a previous murder case should be investigated.
  3. Hungary: The Constitutional Court upholds the validity and legality of certain provisions in borrowers’ relief law which prohibits any unilateral changes to loan contracts.
  4. Dominican Republic: Various civil society organizations publicly rebuke the Constitutional Court’s previous ruling on the unconstitutionality of the Inter-American Human Rights Court’s jurisdiction.
  5. South Africa: The Constitutional Court is going to hear a case relating to a lower court’s ruling that a part of the current Criminal Procedure Act is unconstitutional.

In the News:

  1. Guyana: The President has suspended the National Assembly.
  2. Somalia: Parliament closed prematurely without official proceedings.
  3. South Africa: An extensive brawl broke out in Parliament.
  4. German: Parliament proposes an anti-doping law that would jail dopers.
  5. Ghana: Parliament is divided over the controversial Interstate Succession Bill.

New Scholarship

  1. Benjamin Schonthal, Constitutionalizing Religion: The Pyrrhic Success of Religious Rights in Postcolonial Sri Lanka, Journal of Law and Religion / FirstView Article (arguing that it is not law’s failure that adds to the intensity of religious tensions in Sri Lanka, but rather law’s pyrrhic success)
  2. Daniel J. Hulsebosch, The Revolutionary Portfolio: Constitution-Making and the Wider World in the American Revolution, NYU School of Law, Public Law Research Paper No. 14-56 (arguing that the American constitution-making in the founding era should be viewed with two dimensions of internationalism, one was diplomatic, and the other was cultural and intellectual, and to some extent, the intellectual dimension was autonomous from diplomacy for it engendered a transnational discussion about the optimal forms of institutional design)
  3. John Witte Jr., Religion, Emory Legal Studies Research Paper No. 14-314 (arguing that religion is an important source of modern human rights, and surveying the place of religion in modern international human rights)
  4. Jason Sorens et al, Arab Spring Constitution-Making: Polarization and State Building, Democratization: Building States & Democratic Processes EJournal Vol. 7, No. 41 (testing the validity of a hypothesis of the existence of a U-shaped relationship between political polarization in the general public and net state capacity-building provisions in constitutions of new democracies)
  5. Chien-Chih Lin, Majoritarian Judicial Review: The Case of Taiwan, National Taiwan University Law Review, Vol. 9:1, 2014 (demonstrating the fact that Constitutional Court in Taiwan is indeed a majoritarian court in terms of its docket records and agenda setting, and discovering that judicial self-restraint is indeed counter-majoritarian in Taiwan)

Elsewhere Online

  1. Jurgen Goossens et al: Video interview with Prof. Tierney: Should the People decide? The Scottish and Catalonian referenda, Bel Con Law Blog
  2. Ryan Mitchell, China’s Reforms: Law Without Rights or Law Without Substance? The Huffington Post
  3. Lyle Denniston, Constitution Check: Does the new Obamacare challenge have anything to do with the Constitution? Constitution Daily
  4. Dan Harris, How To Handle China’s Economic Slowdown, China Law Blog
  5. Richard Socarides, Will the Supreme Court Mandate Gay Marriage?, The New Yorker
  6. Betsy Woodruff, The Coming Immigration War, The Slate
  7. George Skelton, California Legislature is looking more moderate due to voting reforms, The Los Angeles Times

Call for Papers

  1. The International Society for the History and Theory of Intellectual Property has issued a call for papers for a workshop titled “Openness and Intellectual Property” to be held on July 22-24, 2015 at the University of Pennsylvania.
  2. Leiden Journal of International Law has issued a call for papers for its symposium of “The Changing Role of Scholarship in International Law” to be held on May 11, 2015 at Hague.
  3. Centre for the Study of Social Exclusion and Inclusive Policy (CSSEIP) has issued a call for papers for the Indian National Seminar on “Six Decades of Indian Constitution and Inclusiveness” scheduled to be held in February, 2015 at University of Mysore.
  4. The Department of Public Law and Jurisprudence, University of Johannesburg has issued a call for papers for the seminar on The Rule of Law and Sustainable Development to be held on March 25, 2015, at Cape Town.
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Published on November 17, 2014
Author:          Filed under: Developments
 

Against All Odds: The Kurds, Comparative Constitutionalism and Kobane

Erin McGrath, University of Pittsburgh

While the world watches the conflict carry on in Kobane, just over the Turkish border with Syria, important facts are understated in the press. The Kobane battle is the latest front in the effort by the Islamic State (IS), an armed terrorist group, to reestablish the Islamic Caliphate across Iraq and Syria. Most observers are unaware that these events have much to do with comparative constitutional law; yet, democratic constitutionalism is at the crux of the conflict.

The importance of the outcome in Kobane lies not from a potential victory by a cruel terrorist group. Other states’ intervention choices are strategically complicated, but the largest repercussions frome Kobane will be those of apathy, not just a failed battle. Democracy supporters not defending Kobane today is similar to the banality of evil.[i] Rather than deference to totalitarianism, instead, we are blinded by the sensationalization of the battle, with media focus on bearded terrorists, hostage beheadings, Kurdish women fighters,[ii] jihadi brides. Inaction in Kobane, where democratic constitutionalism has risen against all odds, is simply unjustifiable.[iii] Yet constitutions are not “sexy;” municipal meetings are not “click-bait.”

The political violence in the Kurdish regions of Iraq and Syria has been occurring for much longer than this latest onslaught.[iv] Since the promise for an independent Kurdish region in the Treaty of Sevres, to its revocation in the Treaty of Lausanne, Kurds have been seeking a homeland. Their struggle has been violent. Over a century later, Kurdish political organization, epitomized in places like Kobane, represents one of only a few independence movements in the Middle East that show what democracy in the region could look like. Among the minorities across Northern Iraq and Northern Syria, just one group embraces democratic constitutionalism: the Kurds.

Read the rest of this entry…

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Published on November 14, 2014
Author:          Filed under: Analysis
 

Video Interview: Developments in Indian Constitutional Law Featuring Rohan Alva

Richard Albert, Boston College Law School

In this latest installment of our new video interview series at I-CONnect, I interview Rohan Alva on developments in Indian constitutional law.

In the interview, we discuss judicial review, current controversies in the separation of powers, the adjudication of socio-economic rights, the judicial use and non-use of comparative public law, access to courts, and children’s rights.

Rohan Alva is an Assistant Professor at Jindal Global Law School, where he directs the Center for Public Law and Jurisprudence. He is an expert in comparative public law and a frequent contributor to I-CONnect. He holds law degrees from Delhi and Harvard.

The interview runs for 22 minutes, and is available here.

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Published on November 13, 2014
Author:          Filed under: Developments
 

Writs but no Weapons? A Stocktake on Administrative Justice in Myanmar

Melissa Crouch, National University of Singapore and University of New South Wales (from December 2014)

The former Chief Justice Ba U of the Supreme Court of Burma once described the constitutional writs as ‘weapons’. The early years of independence in Burma were a time of significant judicial activism, when the Supreme Court did not hesitate to strike down executive decisions that were beyond the powers of decision-makers or that infringed on the rights of citizens. It also did not hesitate to grant applications for habeas corpus in situations of unlawful detention.

A year ago, I wrote about the striking developments that had taken place in terms of the constitutional writs in Myanmar, a country in which citizens had virtually no opportunities to bring complaints against the government to court from the 1970s to 2011.

A significant number of cases continue to be lodged with the Union Supreme Court of Myanmar, and over 500 applications have been lodge since 2011. This means that there have been far more writ cases lodged with the current Supreme Court (2011-) than there were with the previous Supreme Court (1948-1962) during the period of parliamentary period.

Several of these writ cases have been reported in the Myanmar Law Reports, which is a government-run annual publication that publishes a small number of Supreme Court decisions per year. While only six cases have been reported so far, all of these cases were unsuccessful.

There are three key features evident from these cases. First, all the cases concern the decisions of a lower court. While this is one possible function of the writs, it does suggest that the main role of the Supreme Court at present is to supervise decisions of lower courts, rather than decisions of the executive. Read the rest of this entry…

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Published on November 13, 2014
Author:          Filed under: Analysis