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I·CONnect

Blog of the International Journal of Constitutional Law

Five Questions with Antonia Baraggia

Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research. 

This edition of “Five Questions” features a short video interview with Antonia Baraggia, Assistant Professor of Comparative Law at the University of Milan. 

One of her most recent papers is “Conditionality Measures within the Euro Area Crisis: A Challenge to the Democratic Principle?,” available for download here.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com.

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Published on January 18, 2019
Author:          Filed under: New Voices
 

Book Review: Yvonne Tew on Stefanus Hendrianto’s “Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial Heroes”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Yvonne Tew reviews Stefanus Hendrianto’s book Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial Heroes (Routledge 2018).]


Yvonne Tew, Georgetown University Law Center

What shapes the role of constitutional courts in new democracies? What drives the rise of judicial power in emerging constitutional orders? Stefanus Hendrianto’s new book, Law and Politics of Constitutional Courts, explores these questions through providing an account of the importance of judicial leadership in explaining judicial empowerment, illustrated by the impact of individual chief justices on the Indonesian Constitutional Court.

The book offers a fascinating insight into the creation and development of the Constitutional Court of Indonesia and the judicial personalities behind its leadership, with a particular focus on the role of the founding chief justice Jimly Asshiddiqie. By bringing a “global south” perspective from the Southeast Asian context of Indonesia,[1] one of the world’s largest democracies, Hendrianto’s detailed exposition of the experience of Indonesia’s Constitutional Court valuably expands our comparative horizons. Importantly, it also contributes to broader debates in comparative constitutional studies on the emergence of constitutional courts and the consolidation of judicial power in new democratic orders.[2]

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Published on January 17, 2019
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What’s New in Public Law

Davide Bacis, PhD Student in Constitutional Law, University of Pavia (Italy)

In this weekly feature, I-CONnect publishes a curated reading list of developments in 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 public law blogosphere.

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

Developments in Constitutional Courts

  1. The Supreme Court of India held that children born from void marriages are legitimate children and as such entitled to compassionate appointment.
  2. The Advocate General at the European Court of Justice suggested that the right to be forgotten should apply only to users within the European Union.
  3. The European Court of Human Rights ruled that Azerbaijan violated a journalist’s right to privacy and to freedom of expression.
  4. The European Court of Human Rights found that Germany did not violate the rights of a German couple whose children were taken into custody because of the parents’ refusal to send them to school.
  5. The Constitutional Court of Guatemala ordered the UN Commissioner charged with investigating corruption in the country.
  6. The European Court of Justice held that all EU countries must recognize residency rights of same sex partners, even when not allowing same sex marriage.

In the News

  1. The Constitutional Court of Madagascar confirmed the election of President Andry Rajoelina.
  2. Some Italian mayors have been opposing the application of the security decree backed by the Minister of the Interior Matteo Salvini.
  3. President Maduro of Venezuela was sworn in for his second term.
  4. President Trump declared he’s ready to declare the state of emergency.
  5. The US military announced the beginning of troops withdrawal from Syria.
  6. The defeated candidate in the recent DR Congo elections will challenge the results in court.
  7. The Israeli High Court will hear arguments on the constitutionality of the Jewish Nation-State Law.

New Scholarship

  1. M.L. Duarte, B. Menezes Queiroz, R. Tavares Lanceiro and T. Fidalgo de Freitas (eds.), The Charter of Fundamental Rights and the Judicial Activism of the Court of Justice of the European Union (2018) (offering a comprehensive and deep analysis of the protection of fundamental rights within the EU legal system, specifically focusing on the activity of the Court).
  2. P. Auriel and P. Weil, Political Asylum and the European Union. Proposals to Overcome the Impasse (2018) (outlining the current state of art on asylum and migration policies within the EU legal system in order to offer possible solutions to overcome the crisis it’s facing).
  3. M. Hailbronner, Constructing the global constitutional canon: Between authority and criticism (2018) (dealing with global constitutionalism and the necessity to build a canon responding to three main functions).
  4. S. Sivaprasad Wadhia, National Security, Immigration and the Muslim Ban (2019) (focusing on the so called plenary power doctrine and its use to permeate immigration law with national security concepts).
  5. N.S. Chapma, Due Process of War (2019) (offering a comprehensive study on the application of the due Process Clause of the Fifth Amendment to government’s deprivation of rights during war).
  6. N.W. Barber, M. Cahill and R. Ekins (eds.), The Rise and Fall of the European Constitution (2019) (providing an interesting analysis of the reasons behind the failure of the Constitutional Treaty).
  7. G.R. Stone and L.C. Bollinger (eds.), The Free Speech Century (2019) (evaluating the development of free speech doctrine since the landmark decision of Schenck v United States of 1919).
  8. J. Contesse, Settling Human Rights Violations (2019) (offering a study on the practice of friendly settlements and the challenges they raise in settling human rights violations).
  9. We are pleased to share a partial bibliography of scholarship in comparative constitutional law in 2018, provided to us by Professor Mark Kende (Drake): Partial Bibliography of 2018 Comparative Constitutional Law Books and Articles.

Call for Papers and Announcements

  1. The Younger Comparativists Committee of the American Society of Comparative Law welcomes submissions for its 8th Global Conference which will be held in Montreal on May 10-11, 2019. Abstracts of between 500 and 740 words must be submitted by January 31, 2019.
  2. LUISS Guido Carli University is hosting a workshop on “Re-Conceptualizing Authority and Legitimacy in the EU: New Architectures and Procedures to Reconnect the Union with its Citizens” on 1 February 2019 (9h00-17h30) in the framework of the Horizon 2020 ProjectRECONNECT. A detailed program is available here.
  3. The University of Melbourne welcomes contributions for the “Constitutional Resilience in South Asia” workshop on December 2019, 5-7. Abstracts proposals of no more than 1000 words, alongside a CV and a relevant bibliography should be submitted within the end of April 2019.
  4. The American Constitution Society is proud to host the Constance Baker Motley Writing Competition, open to law students. Papers should be submitted within February 10, 2019.
  5. The American Constitution Society is proud to host the Richard D. Cudahy Writing Competition on Regulatory and Administrative Law, open to lawyers and law students. Papers should be submitted within February 3, 2019.
  6. The European University Institute (Florence, Italy) welcomes contributions for a one-day Doctoral Forum on International Law. The forum will be held on June 10, 2019. PhD candidates who would like to participate shall submit abstracts of maximum 600 words by February 15, 2019.
  7. Odile Ammann convenes a workshop on “Lobbying and Domestic Lawmaking Processes: Do Lobbies Strengthen or Undermine Dignity, Democracy and Diversity?” at the 29th World Congress of the International Association for Philosophy of Law and Social Philosophy at the University of Lucerne, Switzerland, to be held on July 7-13, 2019. Researchers interested in participating in this workshop can send a short abstract to odile.ammann@rwi.uzh.ch by March 1, 2019.
  8. The IACL Research Group on “Algorithmic State, Society and Market – Constitutional Dimensions” welcomes submissions for its inaugural conference on “Constitutional Challenges in the Algorithmic Society” to be held in Florence (Italy) on May 9-11, 2019. Abstracts of no more than 800 words should be submitted by February 15, 2019.

Elsewhere Online

  1. G. Delledonne, Rationalizing political representation within the European Parliament, the Italian Constitutional Court rules on the threshold for the European elections, Verfassungsblog
  2. J. Simson Caird, Brexit and the Speaker of the House of Commons: Do the Ends Justify the Means?, Verfassungsblog
  3. A. Weale, Could an “indicative vote” break the Brexit logjam?, The Constitution Unit
  4. A. Deb, Privacy International: A Matter of Constitutional Logic and Judicial Trust?, UK Constitutional Law Association
  5. P. Allott, The Problem of Direct Democracy: Brexit and the Tyranny of the Majority, UK Constitutional Law Association
  6. D. Hovell, Reforming the World in Our Own Image: A Critique of Liberal Constitutionalism, EJIL: Talk!
  7. M. Donaldson, International Organizations and the Making of Modern Legal Histories, EJIL: Talk!
  8. J.W. Lucas, The Anti-Constitutional Legal Campaign against Gerrymandering Reaches the Supreme Court, National Review
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Published on January 14, 2019
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Conference Report–The State of Liberal Democracy in Central and Eastern Europe

–Boldizsár-Szentgáli Tóth, Junior Research Fellow, HAS Centre for Social Sciences, Institute for Legal Studies

The HAS Centre for Social Sciences, Institute for Legal Studies hosted a workshop on the state of liberal democracy in Central and Europe on 6 December 2018, co-organised with the International Society of Public Law Central and Eastern European Chapter (ICON-S CEE).

The workshop was based on the 2017 Global Review of Constitutional Law, a common project of I·CONnect and the Clough Center. It contains country reports from 61 jurisdictions in the world, authored by constitutional scholars and judges. In the framework of the workshops, the authors of the country reports from the Central and Eastern European region had an opportunity to have intense debate on the constitutional situation of the region, the common tendencies, and problems.

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Published on January 12, 2019
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Five Questions with Catarina Santos Botelho

Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions” features a short video interview with Catarina Santos Botelho, Assistant Professor and Department Chair of Constitutional Law at the Porto Faculty of Law at the Catholic University of Portugal.

One of her most recent papers is “Constitutional Narcissism on the Couch of Psychoanalysis: Constitutional Unamendability in Portugal and Spain,” available for download here.

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Published on January 11, 2019
Author:          Filed under: Reviews
 

Book Review: Karin Loevy on Jocelyn Stacey’s The Constitution of the Environmental Emergency

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Karin Loevy reviews Jocelyn Stacey, The Constitution of the Environmental Emergency (Hart 2018).]


Karin Loevy, NYU School of Law

Jocelyn Stacey’s book, The Constitution of the Environmental Emergency, is an ambitious and original project in the intersection between emergency powers theory and environmental law. It suggests that we should view environmental law through the lens of emergency powers; it then spells out an approach to the rule of law that is relevant for emergencies and applies it to environmental governance.

In that the book jumps through two fire hoops. First it makes an argument about the meaning of emergency powers debates to our understanding of the rule of law, an argument that presents itself as a full-blown response to Carl Schmitt’s emergency paradox. Then, it applies this conceptual framework to debates in and about environmental law.

This is undoubtedly a great ambition and Stacey manages to walk the reader through both dangerous hoops with determination and clarity. In the following I will outline the argument and the structure of the book as well as its undoubted value. I will then ask whether and to what extent the model she suggests successfully responds to Schmitt’s critic of liberal law and politics.

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Published on January 10, 2019
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Conference Report–The Inaugural ICON-S-IT Conference (Rome, November 23-24, 2018)

Maria Stella Bonomi, Post-Doctoral Scholar in Administrative Law, University of Roma Tre

The Inaugural Conference of the Italian Chapter of ICON-S was held in Rome on November 23-24, 2018 and focused on the theme of Unity and fragmentation within and beyond the State. The event was organized in cooperation with the National School of Public Administration (Scuola nazionale della Pubblica Amministrazione – SNA) – which hosted the Conference – and the Institute for research on public administration (Istituto di ricerche sulla pubblica amministrazione – IRPA).

The Inaugural Conference Organizing Committee was comprised of: Sabrina Bandera; Alessandro Baro; Stefano Battini; Maria Stella Bonomi; Marta Cartabia; Lorenzo Casini; Pietro Faraguna; Cristina Fasone; Angelo Mari; Giulio Napolitano; Marta Morvillo; Diletta Tega.

The conference had a remarkable success in terms of both participation and quality and attracted scholars from most Italian universities and research institutes, embracing all branches of public law. In particular, it featured:

  • 400 participants, both scholars and practitioners
  • 85 universities, both Italian and foreign
  • 2 plenary sessions
  • 65 parallel panels, with more than 250 papers presented, by both seniors and junior scholars.

The first plenary session concerned the independence of central banks as a constitutional principle, with the participation of Joseph H.H. Weiler (New York University), Chiara Zilioli (European Central Bank) and Roberto Bin (University of Ferrara). The second plenary session focused on the history of Italy and its connection with global culture, with the participation of Sabino Cassese (Scuola Normale Superiore di Pisa), Andrea Giardina (Scuola Normale Superiore di Pisa) and Maria Rosaria Ferrarese (University of Cagliari).

The parallel panels dealt with a wide range of topics, among which the evolution of the concept of sovereignty; the relationship between international and domestic legal systems; migration, identification of national borders and border control; freedom of movement within and beyond the State; nationalism, populism and constitutional powers; the proliferation and fragmentation of the sources of law and regulation. The panels had a great success and participation. After the paper presentations, stimulating discussions between panelists and auditors allowed a fruitful exchange.

Here is the link to the conference programme: https://www.icon-society.org/wp-content/uploads/2018/11/ICON-S-Ita_PROGRAMMA-1.pdf.

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Published on January 10, 2019
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Call for Papers: European Journal of International Law–The 30th Anniversary Symposium

International Law and Democracy Revisited: The EJIL 30th Anniversary Symposium

EJIL was founded in 1989, coinciding with the fall of the Berlin Wall and the attendant excitement encapsulated by that well-known optimistic/hubristic End of History phraseology, with predictions of liberal democracy to become regnant in the world and a New International Legal Order to replace the old First World-Second World-Third World distinctions.

Thirty years later the state of democracy, whether liberal or social or any other variant, seems to be far from sanguine.

Here is but a partial list of the challenges to democracy in the contemporary world:

  • The advent of so-called ‘illiberal democracies’
  • The crisis and breakdown of trust within established democracies
  • The reality or otherwise of states with ‘formal democracy’ often reduced to little more than elections, more or less free
  • The accountability and rule of law concerns, famously termed GAL concerns, which transnational governance regimes raise as indispensable features of democracy
  • The persistent ‘democracy deficit’ or ‘political deficit’ of the European Union and similar Organizations
  • The emergence of the global ‘data economy’ with mega platforms calling into question basic assumptions about territory and jurisdiction and calling into question the ability of democratic regimes to reign in such platforms increasingly questioned
  • The impact of both financial markets and international monetary bodies on the internal margin of manoeuvre and democratic choices of economic management
  • Democracy and global inequality: The relationship between counter-democratic ideologies, legal reforms and political processes at the domestic and global levels and social and economic processes such as the shrinking middle class and the lasting ramifications of the 2008 economic crisis.

The list of challenges could go on quite a bit. The international legal order itself has come under stress and the interaction, descriptively and prescriptively, of international law with the question of ‘democracy’ has become complex, even messy.

We are issuing here a Call for Papers. International lawyers from practice and academia as well as scholars from related disciplines are invited to send an abstract of 350-500 words setting out the prospective papers they would like to submit for inclusion in the symposium dealing with any theme that comes within the overarching topic of International Law and Democracy. We will accept proposals for research papers of 10-12K words as well as shorter Think Pieces of 5-7K words.

The deadline for the Abstracts is 15 January 2019. Draft papers of those abstracts selected by a committee composed of members of the Editorial Boards of EJIL will be expected by 15 June. We are considering a workshop in Madrid in early July to discuss the drafts. Final version of papers will be expected by 15 September.

Abstracts are to be sent to EJIL’s Managing Editor at anny.bremner@eui.eu by 15 January 2019.

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Published on January 9, 2019
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ICON·S Book Prize–Call for Nominations

–The Editors

ICON·S | The International Society for Public Law is pleased to open the Call for Nominations for its second annual Book Prize. In line with the Society’s mission, the prize will be awarded to an outstanding book or books in the field of public law, understood as a field of knowledge that transcends dichotomies between the national and the international as well as between administrative and constitutional law. Preference will be given to scholarship which, in dealing with the challenges of public life and governance, combines elements from all of the above with a good dose of political theory and social science.

The Book Prize will be awarded at the Society’s next Annual Conference on July 1-3, 2019 in Santiago, Chile to the author(s) of a book or books published in the two calendar years prior to the conference (2017 and 2018). The winner will be selected by the Society’s Book Award Committee, chaired in 2018 and 2019 by Anne Peters.

Eligibility Criteria

Monographs on public law as defined above written in any language are eligible for nomination. Only books published up to two years prior to the year of the annual meeting are eligible for nomination. The relevant criterion is the official publication year as stated in the book’s front-matter. Repeat nominations in consecutive years are not permitted. Books nominated for the 2018 Book Prize are not eligible. Nominated books must moreover be the first original edition.

Nomination Procedure

Members of the Society’s Executive Committee and Council, groups of at least three ICON·S members, book review editors of academic journals, as well as scholarly publishers are invited to nominate books, up to a maximum of 5 (five) each. The Book Prize Committee is authorized to consider books that have not been nominated and that it considers particularly worthy of consideration. Please note that authors are not eligible to nominate their own books. Please note also that edited books are not eligible for consideration. The Society especially welcomes nominations of scholarly works by female- and male-identifying scholars.

Nominations may be made via email to bookprize@icon-society.org with the following subject line: Book Prize ATTN: Chair of the Book Prize Committee. Nominations must include a justification of up to 200 words explaining the basis for the nomination.

The deadline for the submission of nominations is January 31, 2019.

Please note that the nominators must send (or make arrangements with the publisher to send) one hardcopy for each member of the Book Prize Committee no later than February 28, 2019 directly to each of the members of the committee. Addresses will be provided after nomination. E-Books or scans can substitute hardcopies with the approval of the Chair. Failure to deliver the required number of hardcopies or substitutes will lead to non-consideration of the proposal.

The Call for Nominations for the ICON·S Book Prize can be downloaded here.

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Published on January 9, 2019
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What’s New in Public Law

–Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

In this weekly feature, I-CONnect publishes a curated reading list of developments in 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 public law blogosphere.

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

Developments in Constitutional Courts

(1) In Palestine, the Supreme Court found a doctors’ strike illegal and an abuse of power.

(2) The Russian Constitutional Court upheld the constitutionality of a 2016 regulation, which requires sports teachers to participate in a mandatory training class without being compensated for it.

(3) The U.S. Supreme Court has set aside a verdict that said lawyers are required to pay an annual membership just to practice in a state.

(4) Chile’s Constitutional Court upheld measures tightening the requirements for human rights violators to get parole.

(5) In Turkey, an administrative court has ruled against a decision made by the State of Emergency Procedures Investigation Commission formed to investigate Turkey’s state of emergency measures.

In the News

(1) Thai parliament passed a bill legalizing medical cannabis and kratom.

(2) The Kuwaiti National Assembly’s interior and defense committee rejects citizenship for non-Muslims.

(3) The Guyana cabinet establishes advisory group after a no-confidence vote.

(4) In Israel, the government is pushing to reduce the electoral threshold.

(5) In Vietnam, a new controversial cybersecurity law took effect.

(6) According to the Irish Domestic Violence Act 2018, psychological or emotional abuse is now a criminal offence.

New Scholarship

(1) Nikos Skoutaris, Reflecting and Building Asymmetries: The Role of (Sub-) Constitutional Statutes in Spain and the UK, in Richard Albert & Joel Colon-Rios (eds.), Quasi-Constitutionality and Constitutional Statutes: Forms, Functions, Applications (Routledge, forthcoming 2019).

(2) Jason A. Cade, Judicial Review of Disproportionate (or Retaliatory) Deportation, 75 Washington & Lee L. Rev. 1427 (2018) (analyzing notable federal court opinions considering challenges to Trump administration deportation decisions).

(3) Dwight G. Newman, Arguing Indigenous Rights Outside Section 35: Can Religious Freedom Ground Indigenous Land Rights, and What Else Lies Ahead?, in Tom Isaac, ed., Key Developments in Aboriginal Law (ThomsonReuters, 2018) (examining why Indigenous communities might wish to argue land issues grounded in religious freedom).

(4) Adeel Hussain, Muhammad Iqbal’s Constitutionalism, 2 Indian L. Rev. (2018) (addressing debates on Islamic constitutionalism, conceptual counter-geographies of international law, and the intellectual history of Pakistan and India’s Constitutions).

(5) Jakub Vojtěch, The EU Framework for Islamic Securitisation and Sukuk in the Times of Brexit (2018) (defining the notion of Sukuk and Islamic Securitisation and focusing on the relevant European Union legislation in force today and in the future).

(6) Nelson Lund, The Constitutionality of Immigration Sanctuaries and Anti-Sanctuaries: Originalism, Current Doctrine, and a Second-Best Alternative, University of Pennsylvania Journal of Constitutional Law, forthcoming (providing a critical analysis of the US Supreme Court’s immigration jurisprudence).

(7) Colleen V. Chien, Policy Pilots: Experimentation in the Administration of the Law, Iowa L. Rev., forthcoming (proposing that policy problem solvers frame their suggestions in terms of experiments to try, not just policies to enact).

(8) Björn Dressel and Tomoo Inoue, Megapolitical Cases before the Constitutional Court of Indonesia since 2004: An Empirical Study, 4 Const. Rev. (2018) (providing a critical analysis to the decisions of the Indonesian Constitutional Court over the period 2003-2018).

Call for Papers and Announcements

(1) The International Courts and Tribunals Interest Group (ICTIG) of the American Society of International Law (ASIL) is pleased to announce a call for papers.  ICTIG will be holding a Works-in-Progress Conference at the John Marshall Law School in Chicago on Friday, January 25, 2019.

(2) Article submissions are requested for issue 61 of the Forced Migration Review. This issue will have a focus on Ethics and Displacement and will be published in June 2019.

(3) The University of Miami School of Law and the University of Miami International & Comparative Law Review will host the Second International and Comparative Insolvency Law Symposium.

(4) The Institute of International and European Law will host the European Society of International Law’s annual Research Forum under the theme of “The Rule of Law in International and Domestic Contexts: Synergies and Challenges”.

(5) The University of Illinois College of Law, the University of Bologna School of Law, and Johns Hopkins Center for Constitutional Studies and Democratic Development invite paper proposals for the Fourth Illinois-Bologna conference on Constitutional History: Comparative Perspectives. The conference will be held in Chicago on April 29 & 30, 2019.

Elsewhere online

(1) Stephen Kafeero, Uganda: 5 Years Later, Case Against Public Order Law Not Heard, All Africa

(2) Year in review: How Romania has changed in 2018, Romania Insider

(3) Peter Schey, The Stupidest Government Shutdown, Immigration Prof Blog

(4) Is Immigration Law Administrative Law?, Immigration Prof Blog

(5) Michael Ramsey, Can the President Be Indicted?, The Originalism Blog

(6) John Yoo and James C. Phillips, ‘Free Speech’ Means Just That, National Review

(7) CMS Albiñana and Suárez de Lezo, The new Constitutional Law on the Protection of Personal Data and Guarantee of Digital Rights, Lexology

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Published on January 7, 2019
Author:          Filed under: Developments