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I·CONnect

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

What’s New in Comparative Public Law

–Simon Drugda, Nagoya University Graduate School of Law (Japan)

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 Constitutional Court of South Africa ruled on Guateng school admissions regulations in a case revolving around feeder zones for public schools, ordering for their redetermination.
  2. The Supreme Court of Venezuela ruled that a decree issued by President Nicolas Maduro declaring a state of emergency is constitutional, while the opposition continues to campaign for a recall referendum.
  3. The Federal Constitutional Court of Germany announced that it will deliver its decision on the European Central Bank OTM program in June and confirmed that it received a separate complaint against the European Central Bank quantitative-easing program.
  4. The U.S. Supreme Court held that the Constitution’s guarantee of a speedy trial does not protect one from sentencing delays.
  5. The U.S. Supreme Court clarified that immigrants can qualify for removal from the U.S. even if they lack an element in corresponding federal laws that trigger deportation.

In the News

  1. The President of Mexico proposed legalizing same-sex marriage nationally.
  2. The President of Ukraine called for a constitutional amendment on self-determination of Crimean Tatars.
  3. Austria held a presidential run-off election vote.
  4. The Macedonian Parliament called off national election amidst protests and a ruling of the Constitutional Court suspending
  5. The Parliament of Turkey approved a constitutional bill to amend the constitution and strip MPs of immunity from prosecution. The PM-elect said that the government’s priority would now be a new constitution to create an executive presidency.
  6. The National Assembly of Pakistan passed a constitutional amendment changing the power and composition of the Electoral Commission.
  7. The government of Poland indicated that it might be open to a compromise concerning the deadlock at the Constitutional Tribunal in exchange for constitutional reforms. At the same time, the European Commission threatened to continue its investigation into the disputed court reforms, unless Poland makes progress on the situation by the end of the week.
  8. Tajikistan held a nationwide referendum on changing its constitution that consisted of 41 proposed wide-ranging amendments.
  9. The National Diet of Japan enacted a voting reform law that will reduce the Lower House by 10 seats and rezone electoral districts to address a national vote weight disparity, introducing the Adams electoral method.
  10. France extended its state of emergency for another two months to cover the EURO 2016 football tournament.

New Scholarship

  1. Pietro Faraguna, How Does the EU Challenge Bicameralism? First Reflections from the Italian Constitutional Experience (2016) (examining the main rationales of and justifications for bicameral legislatures, testing these hypotheses on the case study of Italian bicameralism, and mapping the patterns of change in the Italian experience with bicameralism in light of the European integration processes)
  2. Federico Fabbrini, The Principle of Subsidiarity, in Oxford Principles of EU Law, Takis Tridimas and Robert Schütze eds. (forthcoming 2016) (providing an in depth, updated legal analysis of the principle of subsidiarity in EU law and underlining some significant risks associated with the practical enforcement of the judicial and political safeguards of subsidiarity)
  3. Neil Walker, Federalism in 3D: The Reimagination of Political Community in the European Union, Catolica Law Review (forthcoming 2016) (examining the mixed virtue of the federal perspective in relation to certain key recent developments in the 3D – sub-state, state, supranational – territorial politics of the EU, with a particular focus on the sub-state dimension of the EU “federated” structure)
  4. Mila Versteeg and Emily Zackin, Constitutions Un-Entrenched: Toward an Alternative Theory of Constitutional Design, American Political Science Review (forthcoming) (challenging the traditional consensus that a central purpose of constitutionalism is the entrenchment of principles against future change, drawing on data from democratic national and state constitutions in different geographic regions)
  5. Vassilis P. Tzevelekos and Lucas Lixinski, Towards a Humanized International ‘Constitution’?, 29 Leiden Journal of International Law (2016) (arguing that due to a number of changes of systematic proportions in the order of international law, the internalization of national constitutional human rights law has led to the “constitutionalisation” of international law)
  6. Michaela Hailbronner, Transformative Constitutionalism: Not Only in the Global South, American Journal of Comparative Law (forthcoming 2016) (examining the German and Indian approach to transformative constitutionalism and the concept of transformative constitutionalism itself, in an attempt to move away from the traditional North-South ideological categories)
  7. Sébastien Grammond, Compact Is Back: The Revival of the Compact Theory of Confederation by the Supreme Court, 53 Osgoode Hall Law Journal (2016) (examining the recent use by the Supreme Court of Canada of the “compact theory” of Canadian confederation in cases involving constitutional amendment and indigenous rights and its implications)
  8. James R. May and Erin Daly eds., Environmental Constitutionalism (2016) (assembling key writings from around the world to expound the idea of “environmental constitutionalism,” a new concept that focuses on protection of local and global environmental conditions by invoking national and subnational constitutional law)
  9. Turkuler Isikel, Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State (2016) (critically evaluating the European Union and its legal system and proposing the idea of “functional constitutionalism” to describe its distinctive configuration of public power)
  10. Maria Tzanakopoulou, Social Consensus in the EMU: The Constitutional Tenets of a Currency Union, in European Yearbook of International Economic Law, Akbar Rasulov and John Haskell eds. (forthcoming 2016) (discussing the constitutional tenets of the European Monetary Union and examining the possibility of transformation of the EMU into a politically integrated constitutional order)
  11. Andrea Simoncini, The Constitutional Dimension of the Internet: Some Research Paths (2016) (analyzing the impact of Internet technology on constitutional law along the dimensions of Democracy and Citizenship and proposing a non-linear perspective of the relationship between these and the rise of the Internet)
  12. Bojan Bugaric, Neoliberalism, Post-Communism, and the Law, 12 The Annual Review of Law and Social Science (forthcoming) (tracing the role of law during the first 25 years of transition and its relationship with neoliberal policies and institutions that were put in place in Central and Eastern European countries)
  13. Mario Alberto Cajas Sarria, The Building of Colombian Constitutional Justice: A Historical and Political Perspective, 1910-1991, Precedente Journal of Law (2015) (tracing the path of reforms and attempts to reform the Colombian Constitutional Justice and revealing how political actors and scholars, with different purposes and strategies, under certain political contexts and legal doctrines, built it between 1910 and 1991)

Call for Papers and Announcements

  1. Yale Law School will host its Sixth Annual Doctoral Scholarship Conference, which will be held on November 11-12, 2016.
  2. Duke Law School will host the 11th Annual Conference on Empirical Legal Studies (CELS), to be held on November 18-19, 2016. All submissions will be peer-reviewed. The submission deadline is July 10, 2016.
  3. The University of Cartagena will host a conference on “Philosophical Foundations of Global Law,” which will take place on August 24-27, 2016. The deadline for abstracts is June 15, 2016.
  4. Loyola University Chicago School of Law is organizing its Seventh Annual Constitutional Law Colloquium on November 4-5, 2016. The deadline for abstracts is June 20, 2016.
  5. The Faculty of Law of the University of Toronto will host the third Labour Law Research Network (LLRN) Conference, to be held on June 25-27, 2017. The submission deadline for abstracts and proposals is October 15, 2016.
  6. The Faculty of Law of the University Cheikh Anta Diop of Dakar in cooperation with Centre for Economic Law Studies (CEDE) of the Law Faculty of Laval University of Quebec will hold a conference on “le droit des procédures judiciaires: perspectives comparative et transnationale,” on July 28-29, 2016 in Senegal. The deadline for submission of abstracts is June 10, 2016.

Elsewhere Online

  1. Douglas McDonald, Restrictions on Constitutional Amendments in Papua New Guinea and India, Law and Other Things
  2. Saul Leal, Happiness as constitutional empowerment in Nigeria, AfricLaw
  3. Pedro Montano, Conscientious Objection or Oppression: That is the Question, Oxford Human Rights Hub
  4. Magna Inácio, Collapse of Brazilian coalitional presidentialism?, Presidential Power
  5. Lucy Moxham and Jan van Syl Smit, Developing a Guide to Administrative Law for Civil Servants: From the UK to Kenya, Blog of the IACL, AIDC
  6. John Pyke, Reasons Not to Be Scared of a New Constitutional Preamble, AUSPUBLAW
  7. Graeme Cowie, Prisoners to Devolved Fortune? The Right to Vote and the Scotland Act 2016, UK Constitutional Law Association
  8. Mark Elliot, The 2016 Queen’s Speech and the Constitution, Public Law for Everyone
  9. Jack M. Balkin, Judicial Constraint, Judicial Restraint, and the New Originalism, Balkinization
  10. You can read contributions by Chad Flanders, Erin Morrow Hawley, Nelson Tebbe, Micah SchwartzmanRichard C. Schragger, Leslie C. Griffin, Caroline Mala Corbin, and Richard W. Garnett to an online symposium on the SCOTUS decision in Zubik v. Burwell at SCOTUSblog.
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Published on May 23, 2016
Author:          Filed under: Developments
 

“De-constitutionalism” in Turkey?

–Dr. Ali Acar, Ph.D. in Law, EUI

Can “de-” be a modifier to describe the constitutionalism in a country? [1]

This is what Prof. Kemal Gözler, a constitutional law scholar, has termed the current state of constitutionalism in Turkey.[2] He argues that Turkey undergoes a process of de-constitutionalism through various ways and practices of constitutional bad faith, referring to David Pozen’s recent article published in Harvard Law Review.[3] His argument is that constitutional bad faith practices employed by the constitutional institutions (mainly the executive, but also the judiciary) lead one to hold the view that there is no more a (valid) constitution in Turkey.

More clearly, Gözler argues that the basic principles of constitutionalism–such as the separation of powers, the independence of judiciary, the protection of fundamental rights and freedoms–do not hold true anymore in Turkey. Mark Tushnet’s Editorial remarks in the last issue of I*CON that “studying the power maps involves studying constitutions in authoritarian nations, but perhaps not studying constitutionalism there”[4] can be regarded along the lines of the Gözler’s analysis. Or the state of constitutionalism in Turkey can be studied as an example of abusive constitutionalism, with reference to David Landau.[5]

Whatever it is termed, one thing is certain that Turkey is undergoing a constitutional deadlock or crisis, and its indicators can be observed on many occasions.

Read the rest of this entry…

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Published on May 19, 2016
Author:          Filed under: Analysis
 

Transnational Disagreement on Human Rights: How U.S. Appellate Courts address the “Human Rights and Fundamental Freedoms” Clause in the Hague Convention on the Civil Aspects of International Child Abduction

Francesca Genova, University of Notre Dame

While the phrase “human rights and fundamental freedoms,” found in the Hague Convention on the Civil Aspects of International Child Abduction[1]  (Hague Convention), is ubiquitous in international human rights treaties and regimes,[2] it is not native to American jurisprudence. It enters into American law through treaty implementation.[3] American courts interpret narrowly the Hague Convention’s “human rights and fundamental freedoms” clause, which provides a defense for keeping a child in the country to which he or she was abducted. Indeed, in the twenty-seven years since the treaty’s ratification, no federal appeals court has accepted this defense.[4] American courts’ nonuse of this clause comports with American jurisprudential principles and the clause’s aims; it also shows how the clause may impede the harmonization of Hague Convention jurisprudence across jurisdictions.

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Published on May 18, 2016
Author:          Filed under: Analysis
 

What’s New in Comparative Public Law

Angelique Devaux, French Licensed Attorney (Notaire)

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. Congo’s Constitutional Court ruled that the president can stay in office beyond his mandate if there is a delay in presidential elections, which are slated for November.
  2. Albania’s Constitutional Court held that the mandate of Socialist Party MP Koco Kokedhima is unconstitutional because a company of his won a public procurement contract after he was elected.
  3. The Supreme Court of India upheld a set of defamation laws, finding them to be constitutionally valid.
  4. Sudan’s Constitutional Court allowed the Al-Tayyar newspaper to resume publishing following more than a four-month suspension by the National Intelligence and Security Services.
  5. The Texas Supreme Court ruled that although the state’s “Byzantine” school funding system urgently needs to be modernized, it is constitutional.

In the News

  1. The Senate of Brazil voted to initiate an impeachment trial against President Dilma Rousseff for allegedly borrowing from state banks to cover a deficit and pay for social programs to secure her re-election in 2014.
  2. The Administrative Department of Al-Bayda Appeals Court ruled that the amendment to the voting quorum of the Constitution Drafting Assembly was illegal.
  3. The Italian Parliament gave final approval to a law recognizing same-sex civil unions.
  4. China formally indicted Ling Jihua, one of the country’s most powerful men until a Ferrari crash derailed his career in 2012, on corruption and state-secrets charges.
  5. The Steering Committee of the Facility for Refugees in Turkey met in Brussels to agree on the practicalities of how support through the Facility will be accelerated in the months to come.
  6. The European Commission published a study on the evidentiary effects of authentic acts in the Member States of the European Union in the context of successions.
  7. Alabama Governor Robert Bentley signed two pieces of legislation restricting abortion.

New Scholarship

  1. Frank Emmert, The Argument for Robust Competition Supervision in Developing and Transition Countries, Journal of Governance and Regulation (forthcoming) (discussing market economic models and the best ways to introduce or reinforce competition supervision for developing and transition countries)
  2. Stella Burch Elias, Testing Citizenship, 96 Boston Law Review (2016) (exploring recent developments in the statutory and regulatory naturalization requirements in seven countries—the United States, Canada, the United Kingdom, the Netherlands, Germany, France, and Australia—in order to identify potential options for reform to American nationality laws)
  3. Shai Dothan, Comparative Views on the Right to Vote in International Law: The Case of Prisoners’ Disenfranchisement, in Comparative International Law (Anthea Roberts et al. eds.) (forthcoming) (examining the international right to vote in the context of prisoners’ disenfranchisement in national courts)
  4. Margaret Ryznar and Michael Jacobs, Jr., Implementing Dodd-Frank Stress Testing, Indiana University Robert McKinney School of Law Research Paper No. 2016-18 (examining how banks should use the Dodd-Frank Act in order to prevent another crippling recession)
  5. Jean-Sylvestre Bergé, A Need of Law? About a Long Term Research on a New Legal Concept: “Full Movement beyond Control” (identifying a new legal concept capable of specific legal treatment and competent to take in hand the particular issues raised by the phenomenon of “full movement beyond control” and the legitimate expectations it may create)
  6. Barnali Choudhury, Social Disclosure, Berkeley Business Law Journal (forthcoming), (examining the utility of disclosure rules in corporate and securities law to promote social policies in comparative perspective)
  7. Alenka Kuhelj and Bojan Bugaric, A Day in the Life of Post-Communist Europe, Hague Journal of the Rule of Law (2016) (presenting stories about citizens’ interactions with various rule of law institutions in transitional constitutionalism in the “post-Communist world”)
  8. Bojan Bugaric, Protecting Democracy inside the EU: On Article 7 TEU and the Hungarian Turn to Authoritarianism in Reinforcing Rule of Law Oversight in the European Union, CLOSA, Carlos (ur.), KOCHENOV, Dimitry (eds.) (2016) (examining the new Hungarian constitutional order in light of the EU democracy protection clause)
  9. Wolfgang Schoen, Tax Law Scholarship in Germany and the United States, Working Paper of the Max Planck Institute for Tax Law and Public Finance No. 2016-7 (presenting a comparative analysis between the United States and Germany of the different ways tax law scholarship is understood and performed)
  10. Neil Walker, Constitutional Pluralism Revisited, European Law Journal (forthcoming 2016) (revisiting the theory of constitutional pluralism)
  11. Benjamin Shmueli, Tax, Don’t Ban: A Comparative Look at Harmful but Legitimate Islamic Family Practices Actionable under Tort Law, Vanderbilt Journal of Transnational Law (2016) (using tort law in order to study whether Islamic law should apply to Muslims couples living in western countries)

Calls for Papers and Announcements

  1. The LUISS School of Government and PADEMIA invite applications for the Summer School “Parliamentary Democracy in Europe” on “Legislative initiative and agenda-setting in the European Union” to be held in Rome, Italy on July 11-15, 2016.
  2. The ASCL Younger Comparativists Committee issued a call for papers to fill a panel on “New Perspectives in Comparative Law” to be held at the ASCL Annual Meeting on October 28-29, 2016 at the University of Washington in Seattle.
  3. The Max Planck Institute Luxembourg is undertaking a European Commission-funded Study on the laws of national civil procedure of the 28 Member States and the enforcement of European Union law. All lawyers are welcome to respond to the questionnaire online.
  4. The Universidade Estadal Paulista “Julio De Mesquita Filho” issued a call for papers for the IV Seminar on State’s Law titled “Globalization and the Grounds of Citizenship” to be held on November 22-25, 2016 in Sau Paulo, Brazil.
  5. Oil, Gas and Energy Law Intelligence invites submissions for a special issue on “Oil and Gas Law and Policy in West Africa.”
  6. The East African Community Secretariat issued a call for papers for the East African Community Law Journal.

Elsewhere Online

  1. Ibrahim Al-bakri Nyei, Liberia’s Constitutional future: Religious and centralized? ConstitutionNet
  2. Burcu Yüksel, The Turkish Constitutional Court on International parental child abduction: judgment of Marcus Frank Cerny, Family Law
  3. Kudzani Ndlovu, Challenging anti-terrorism laws in Swaziland: When the judiciary becomes the stumbling block, AfricLaw
  4. Steven D. Schwinn, District Judge Says Obamacare Reimbursements are Invalid, Constitutional Law Prof Blog
  5. Christof Heyns and Thomas Probert, Securing the Right to Life: A cornerstone of the human rights system, Blog of the European Journal of International Law
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Published on May 16, 2016
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Russia’s Constitutional Court Declares Judgment of the European Court “Impossible” to Enforce

–Ilya Nuzov, Geneva Academy of International Humanitarian Law and Human Rights

Last month on April 19, 2016, Russia’s Constitutional Court ruled that enforcement of the 2013 Anchugov & Gladkov v. Russia judgment of the European Court on Human Rights (ECtHR) is ‘impossible’, because it is contrary to the Russian Constitution. This post considers key parts of the decision for their compliance with Russia’s obligations under international law, in light of the contextual ‘dialogue’ between Council of Europe institutions and Russia’s judicial and lawmaking authorities.

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Published on May 13, 2016
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Article Review/Response: Robert Leckey on Michèle Finck’s “Role of Human Dignity in Gay Rights Adjudication and Legislation: A Comparative Perspective”

[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Robert Leckey reviews Michèle Finck’s article The Role of Human Dignity in Gay Rights Adjudication and Legislation: A Comparative Perspective, which appears in the current issue of I•CON.  Michèle Finck then responds to the review. The full article is available for free here.]

Review by Robert Leckey

Robert Leckey, Director, Paul-André Crépeau Centre for Private and Comparative Law, and Dean Designate, McGill University, Montreal

In her ambitious comparative article, Michèle Finck attempts to make sense of the function that the notion of human dignity has played in courts’ and legislatures’ recognition of gay rights. Her gaze ranges widely, taking in international human rights instruments and developments from several European states, Canada, South Africa, and Mexico, while maintaining a steady (if unacknowledged) focus on the U.S. She argues that dignity’s conceptual flexibility – and intuitive appeal – makes it an effective justificatory tool. It mediates between legal sources denying the possibility of same-sex marriage and pro-gay socio-cultural change. For example, a revised understanding of dignity helps the U.S. Supreme Court to advance gay rights in the face of established doctrines of equality or federalism.

Readers will find much to appreciate in Finck’s important and timely article. Indeed, while her article entered production too soon to deal with last June’s Obergefell v. Hodges, that historic judgment by the U.S. Supreme Court seems to bear out Finck’s hypothesis. Justice Kennedy invokes dignity nine times and in his dissent, Roberts C.J. notes that the U.S. Constitution has no “Nobility and Dignity” Clause. While Finck’s article gave me much to think about, space constraints limit me to two critical concerns from distinct registers and sensibilities.

Read the rest of this entry…

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Published on May 10, 2016
Author:          Filed under: Reviews
 

What’s New in Comparative Public Law

Mohamed Abdelaal, Alexandria University (Egypt)

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 German Constitutional Court ruled that the Basic Law does not create specific rights for parliamentary opposition groups.
  2. Hungary’s Supreme Court ruled that the government may hold a referendum on whether it will accept the EU’s quota system on accepting migrants.
  3. Venezuela’s Supreme Court held that any constitutional amendment to reduce the presidential term could not be retroactive.
  4. A group of more than 750 detainees held on Manus Island in Papua New Guinea asked the Australian High Court to order their transfer to mainland Australia.
  5. The EU Court of Justice upheld EU rules that will require health warnings to cover 65 percent of a cigarette pack.

In the News 

  1. South Africa’s parliament invited public submissions on changes to the Constitution.
  2. Jordan’s parliament passed a constitutional amendment granting King Abdullah II the power to appoint or dismiss senior officials without consulting the government.
  3. The Guyana Steering Committee on Constitutional Reform handed over its final report to Prime Minister Moses Nagamootoo.
  4. Tens of thousands poured out onto the streets of Tokyo on Constitution Day to protest Prime Minister Shinzo Abe’s plan to change the country’s fundamental war laws in the coming months.
  5. Kenya’s parliament voted against a bill that would have given women more seats in the House.
  6. Turkish President Recep Tayyip Erdoğan announced that he does not plan to change the country’s anti-terrorism law, a requirement of a deal struck between Turkey and EU in March.

New Scholarship 

  1. Jonathan L. Marshfield, Amendment Creep, 115 Michigan Law Review (forthcoming 2016) (exploring how state and federal courts in the United States have looked to formal amendment rules for guidance when deciding constitutional disputes unrelated to formal amendment and suggesting that this technique may be normatively desirable).
  2. Bojan Bugarič, Protecting Democracy inside the EU: On Article 7 TEU and the Hungarian Turn to Authoritarianism, in Closa, Carlos & Kochenov, Dimitry (eds.) Reinforcing rule of law oversight in the European Union (2016) (addressing the current situation in the EU wherein a political club of democratic regimes established primarily to promote peace and prosperity in post-World War II Europe is now confronted with Hungary becoming an authoritarian illiberal political regime)
  3. Julio Ríos-Figueroa, Constitutional Courts as Mediators: Armed Forces, Civil-Military Relations, and the Rule of Law in Latin America (2016) (offering a new theoretical framework for understanding the mediator role played by constitutional courts in democratic conflict solving).
  4. Bui Ngoc Son, Confucian Constitutionalism in East Asia (2016) (exploring constitutionalist ideas and practices in Confucian tradition and advancing a mixed constitutional theory in East Asia).
  5. Anne Peters, Proportionality as a Global Constitutional Principle, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2016-10 (examining the principle of proportionality and its implications in the international law arena).
  6. Armin von Bogdandy, Comparative Constitutional Law as a Social Science? A Hegelian Reaction to Ran Hirschl’s Comparative Matters, 55 Der Staat 103-115 (2016) (reviewing Ran Hirschl’s book “Comparative Matters”).
  7. Justin Collings, Appealing to Congress, UC Davis Law Review (forthcoming 2016) (describing why the modern avoidance canon leaves much to be desired and pointing to a more attractive approached first developed in Germany)
  8. Stephen Gardbaum, Political Parties, Voting Systems, and the Separation of Powers, 65 American Journal of Comparative Law (forthcoming 2017) (arguing that whatever the formal arrangements on the separation or “fusion” of executive and legislative powers—whether presidential, parliamentary, or semi-presidential—the way any constitution operates in terms of concentrating or dispersing power is a function of the political party and electoral systems in place).
  9. Fleur E. Johns, The Temporal Rivalries of Human Rights, 23 Indiana Journal of Global Legal Studies 39 (2016) (arguing that political intervention in an uneven temporal terrain may be occasioned by reading international human rights law anachronistically and reactivating the times and rhythms of the global economy, and of the nation-state, as political questions of the first order)
  10. Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5(1) Br. J. Am. Leg. Studies 95-121 (2016) (discussing the disqualification provision in Section 2071 of Title 18 of the United States Code and the possibility of Hillary Clinton being disqualified from the presidency).
  11. Robert A. Katz, The Role of Public Reason in Obergefell v. Hodges, FIU Law Review (2016) (exploring the role that public reason plays in the opinion of the Supreme Court’s 2015 landmark decision recognizing a constitutional right to same-sex marriage).

Calls for Papers

  1. The Africa Journal of Comparative Constitutional Law invites submissions for its inaugural issue.
  2. Nova Southeastern University Shepard Broad College of Law and the Nova Law Review seek submissions for a symposium on October 14, 2016. The theme will be “Regulating Innovation in Healthcare: Protecting the Public or Stifling Progress?”
  3. The Competition Law Scholars Forum and UCD Sutherland School of Law invite abstract paper proposals from researchers, scholars, practitioners and policy-makers for a workshop on “Competition Law and Enforcement Priorities” to be held on September 16, 2016 at UCD Sutherland School of Law.
  4. University of Bedfordshire School of Law and Finance has issued a call for papers for its annual conference under the theme of “Rebalancing International Agreements in Favour of Host States – Is it Time for an International Investment Court?” The conference will be held at the University of Bedfordshire School of Law and Finance on June 29, 2016.
  5. The International Review of Law is inviting submissions for its upcoming issues to be published in July 2016 and January 2017.
  6. A call for papers has been issued for a workshop on “Vulnerability and Social Justice” to be held at the University of Leeds, UK.

Elsewhere Online

  1. Review of Russian Constitutional Court Judgement No. 12-П in the case concerning the review of the possibility of enforcement of the judgement of the European Court of Human Rights of 4 July 2013 in the case of “Anchugov and Gladkov v. Russia”, Constitutional & International eJustice Portal
  2. Renáta Uitz, Hungary’s attempt to manage threats of terror through a constitutional amendment, ConstitutionNet
  3. Barbara Guastaferro, Disowning Edmund Burke? The Constitutional Implications of EVEL on Political Representation, UK Constitutional Association
  4. Ruthann Robson, Congressional Research Service on Supreme Court Nominee Merrick Garland, Constitutional Law Prof Blog
  5. Lyle Denniston, Constitution Check: Is an old anti-New Deal precedent getting new life again?, Constitution Daily
  6. Ronald K.L. Collins, FAN 107 (First Amendment News) FTC’s Power to curb misleading ads remains intact, Concurring Opinions
  7. Matthew Dresden, China’s Trademark Laws vs. the Biggest Company in the World, or Apple’s Cruelest Month, China Law Blog
  8. Owen Fung, Sedition laws could be unconstitutional, says Hong Kong National Party, South China Morning Post
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Published on May 9, 2016
Author:          Filed under: Developments
 

Virtual Book Review Roundtable: “Unfit for Democracy” Featuring Stephen Gottlieb, Peter Quint and Dana Schmalz

Richard Albert, Boston College Law School

In this latest edition of our virtual book review roundtable series here at I-CONnect, Peter Quint and Dana Schmalz comment on Stephen Gottlieb’s new book entitled Unfit for Democracy: The Roberts Court and the Breakdown of American Politics, published earlier this year by New York University Press. Though it is not evident from its provocative title, this book falls squarely within our interests in comparative public law. Here is a short description:

Asked if the country was governed by a republic or a monarchy, Benjamin Franklin replied, “A republic, if you can keep it.”

Since its founding, Americans have worked hard to nurture and protect their hard-won democracy. And yet few consider the role of constitutional law in America’s survival. In Unfit for Democracy, Stephen Gottlieb argues that constitutional law without a focus on the future of democratic government is incoherent—illogical and contradictory. Approaching the decisions of the Roberts Court from political science, historical, comparative, and legal perspectives, Gottlieb highlights the dangers the court presents by neglecting to interpret the law with an eye towards preserving democracy.

A senior scholar of constitutional law, Gottlieb brings a pioneering will to his theoretical and comparative criticism of the Roberts Court. The Roberts Court decisions are not examined in a vacuum but instead viewed in light of constitutional politics in India, South Africa, emerging Eastern European nations, and others. While constitutional decisions abroad have contributed to both the breakdown and strengthening of democratic politics, decisions in the Roberts Court have aggravated the potential destabilizing factors in democratic governments. Ultimately, Unfit for Democracy calls for an interpretation of the Constitution that takes the future of democracy seriously. Gottlieb warns that the Roberts Court’s decisions have hurt ordinary Americans economically, politically, and in the criminal process. They have damaged the historic American melting pot, increased the risk of anti-democratic paramilitaries, and clouded the democratic future.

Dana Schmalz, a former Research Associate at the Max Planck Institute for Comparative Public Law and International Law, is now a graduate student in comparative legal thought at Cardozo Law School.

Peter Quint is the Jacob A. France Professor Emeritus of Constitutional Law at the University of Maryland Francis King Carey School of Law

And Stephen Gottlieb is the Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School.

The full discussion runs for 56 minutes, and is available here. We thank these three scholars for participating in our virtual book review roundtable series.

Suggested CitationVirtual Book Review Roundtable: “Unfit for Democracy” Featuring Stephen Gottlieb, Peter Quint and Dana Schmalz, Int’l J. Const. L. Blog, May 6, 2016, at: http://www.iconnectblog.com/2016/04/virtual-book-review-roundtable-unfit-for-democracy-featuring-stephen-gottlieb-peter-quint-and-dana-schmalz

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Published on May 6, 2016
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The Chilean Constituent Process: A Long and Winding Road

Alberto Coddou Mc Manus, Diego Portales University & University College of London

Nowadays, Chile is undergoing a unique constituent process. A longstanding aim of several social movements, the idea of a new constitution now dominates the agenda, and is one of the main commitments of the current government. The commitment to replace the Constitution of 1980 stems partly, but not exclusively, from its origin in dictatorship. In an era where structural reforms have been at the forefront of centre-left governments around the region, various constraints put in place by the 1980 constitution have assumed a central place in the Chilean political public sphere. It seems that Chileans have to discuss, design and implement every policy under the shadow of Pinochet’s constitution, which was carefully crafted to preclude the institutional articulation of progressive political projects. Several critiques against the current constitutional arrangements have emerged: the powers of the Constitutional Court, which has emerged as a threat to strike down major reform packages; super-majoritarian laws that regulate fundamental issues (like education, local government, or the organization of the armed forces), which were mostly enacted during the dictatorship and to which any reform can be blocked by a congressional minority of 3/7ths; and, echoing a problem that is widespread in the region, a hyper-presidentialism that relegates Congress to a secondary role.

In this scenario, and under the pressure of social movements that during the last presidential election called on people to mark their ballots in order to support a Constituent Assembly, President Bachelet committed her political forces to launch a constitutional process that would comply with three standards: respect for the current institutional arrangements, in order to motivate the participation of sceptical sectors of the political establishment; active participation of the citizenry, that for the first time in the Chilean history has been invited to be the main actor of this process; and inclusiveness, which implies being aware of different groups that have been historically and structurally excluded from political debates. What was drafted in general terms in her political manifesto is now being implemented, and the precise articulation and design of the constituent process is something that may attract the interest of broader regional or global audiences. Three features of the current constituent process should be highlighted.

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Published on May 4, 2016
Author:          Filed under: Developments
 

What’s New in Comparative Public Law

–Rohan Alva, Advocate, New Delhi

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 Constitutional Court of Colombia declared that same-sex marriages are deserving of constitutional protection.
  2. Venezuela’s Supreme Tribunal of Justice rejected the political opposition’s efforts to reduce the term of Venezuelan President Nicolas Maduro.
  3. The Supreme Court of India expressed dismay over enormous sums of money given out as loans by banking institutions remaining unpaid and suggested that the Indian government take immediate steps to recover the monies.
  4. The U.S.Supreme Court refused to block the state of Texas from enforcing its controversial voter identification law.
  5. The Japanese Supreme Court issued an apology for having permitted subordinate courts to conduct trials of persons afflicted with leprosy in places other than the courtrooms.
  6. The Supreme Court of India invited the views of the Attorney General on Congress MP Jairam Ramesh’s petition challenging introduction of the Aadhaar bill in Parliament as a “money bill” accusing the BJP-led NDA government of committing a “Constitutional fraud.”

In the News

  1. At a conference of chief justices and chief ministers of the different Indian states, it was resolved that retired judges of the high courts should be appointed for a limited term as justices in the high courts, so as to reduce the pendency of cases.
  2. In China, under new legislation, law enforcement agencies have been conferred with wide powers to investigate the functioning of foreign non-governmental organisations.
  3. In the United States, Tennessee’s governor assented to a law that allows a counsellor or a therapist not to treat persons if the treatment would conflict with the practitioner’s “sincerely held principles.”
  4. The Austrian government has been conferred with wide powers to disallow asylum seekers from entering the country.
  5. Jordan’s lower house of Parliament passed constitutional amendments giving new powers to the King and allowing citizens with dual nationalities to occupy senior public posts and parliamentary seats.

New Scholarship

  1. Cormac S. Mac Amhlaigh, Pluralising Constitutional Pluralism, in In Pursuit of Pluralist Jurisprudence (N. Roughan and A. Halpin (eds.)) (forthcoming) (proposing that a plurality of models are needed to understand “interactions and conflicts between different legal orders” since the complexities of constitutional pluralism cannot be fully explained by a singular model)
  2. Dieter Grimm, Constitutionalism: Past, Present, and Future (2016) (exploring important issues in constitutional law such as the qualities a constitution must possess and constitutional interpretation)
  3. Aileen McHarg, Tom Mullen, Alan Page, and Neil Walker (eds.), The Scottish Independence Referendum (forthcoming 2016) (examining, from a cross-disciplinary perspective, the impact of the Scottish Referendum Process on UK constitutional law)
  4. Jonathan L. Marshfield, Improving Amendment, Arkansas Law Review (forthcoming) (suggesting that amendment politics in several U.S. states might be improved if amendment rules in those states were changed to require ratification of amendments by some majority of locally-elected governing bodies rather than at-large public referenda)
  5. Cass R. Sunstein, Antonin Scalia, Living Constitutionalist, Harvard Law Review (forthcoming) (examining opinions of Justice Scalia that suggest that he was an ardent believer of “living constitutionalism”)
  6. Norman P. Ho, Confucian Jurisprudence, Dworkin, and Hard Cases, Washington University Jurisprudence Review (forthcoming) (arguing that Confucian jurisprudence accurately can be analogized to Dworkin’s adjudicative theory of law, in particular, his interpretive theory of law)
  7. Dan Priel, Conceptions on Authority and the Anglo-American Common Law Divide, American Journal of Comparative Law (forthcoming) (seeking to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory)

Announcements and Calls for Papers

  1. Abstracts of papers are invited for a conference on “Philosophical Foundations of Global Law,” which is being held at the University of Cartagena on August 24-27, 2016. Abstracts must be sent in by June 15, 2016.
  2. A symposium on “Regulating Innovation in Healthcare: Protecting the Public or Stifling Progress?” is being organised by the Nova Southeastern University Shepard Broad College of Law and the Nova Law Review on October 14, 2016. Interested participants are invited to submit abstracts of papers by May 15, 2016.
  3. The LSE Health & Social Care and the Department of Social Policy at the LSE have issued a call for papers for the “International Health Policy Conference 2017,” which will be held at the LSE on February 16-19, 2017. All abstracts must be sent in by October 1, 2016.
  4. The Faculty of Law, University of Trento, Italy, is organising a Summer School on the theme “Constitutional Legitimacy of Political Parties.” Applications for the Summer School should be submitted by May 12, 2016 (extended deadline).
  5. Professor Dominique Clément will deliver a public lecture on “Equality Deferred: Human Rights Law in Canada” on May 3, 2016. The lecture is organized by the New Zealand Centre for Human Rights Law, Policy and Practice.

Elsewhere Online

  1. Ian McPherson, New Zealand on the Verge of Implementing Pay Equity, Oxford Human Rights Hub
  2. Dwight Newman, Indigenous Rights, Canada’s National Energy Board, and the Supreme Court of Canada, JURIST
  3. Howard M. Wasserman, Improper motive can violate the First Amendment, even with a factual mistake, SCOTUS Blog
  4. John Pfaff, A Mockery of Justice for the Poor, New York Times
  5. Douglas McDonald, GJ and Others: The UK Upper Tribunal on Post-Civil War Returnees to Sri Lanka, Law and Other Things
  6. Renáta Uitz, Hungary’s attempt to manage threats of terror through a constitutional amendment, ConstitutionNet
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Published on May 2, 2016
Author:          Filed under: Developments, Uncategorized