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

Five Questions with Victor Ferreres Comella

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions with … ” features Victor Ferreres Comella, a member of the Governing Council of the International Society of Public Law (ICON-S). His full bio follows below:

Victor Ferreres Comella, Professor of Constitutional Law, Pompeu Fabra University (Barcelona) obtained his JSD at Yale Law School, with a thesis on Judicial Review and Democracy (1996). His work has focused on constitutional courts, fundamental rights, European supranational structures, and arbitration. His most recent books are Constitutional Courts and Democratic Values. A European Perspective (Yale University Press, 2009), and The Constitution of Spain: A Contextual Analysis (Hart Publishing, 2013). He has also written two books in Spanish: Justicia constitucional y democracia (Centro de Estudios Políticos y Constitucionales, 1997), which won the “Francisco Tomás y Valiente” Prize, and El principio de taxatividad en material penal y el valor normativo de la jurisprudencia (Civitas, 2002). As a visiting professor, he has taught at New York University School of Law (2001, 2003, and 2007), and at the University of Texas School of Law (2005, 2009, 2010, 2011, 2012, 2013, 2014, 2015, and 2016). For ten years (2001-2011) he also taught at the Spanish Judicial School.

1. Tell us about something you are working on right now.

I am currently working on a book on arbitration, which seeks to explore the most important constitutional issues that the growing practice of arbitration raises. My discussion covers arbitration in private law, in the field of investment law, and in the domain of public international law.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

I normally have a book project to work on, and I try not to be distracted with too many commitments to write on other topics. However, I do not write every day. I devote long periods to do background reading, and then I spend time on intense writing. I always have a document, however, where I register the main ideas as I go on with my research. I also like to keep notes of all the important books and articles that are relevant. I do not use all those notes for the book, but I find it very useful to keep that material as a source of basic information. It is also helpful to use that material to prepare courses or seminars on the subject.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

There are several authors in the area of constitutional and legal theory whose work has always interested me: Bruce Ackerman, Owen Fiss, Lawrence Sager, Sanford Levinson, Cass Sunstein, Mark Tushnet, Vicki Jackson, Ronald Dworkin, Jeremy Waldron quickly come to mind.

4. Is there an article or book that influenced you as a law student and that continues today to be an important reference point for you?

I wrote my doctoral dissertation at Yale Law School on the potential tension between judicial review and democracy. The classical work that triggered the modern discussion on this issue in the United States is Alexander Bickel’s book, “The Least Dangerous Branch”. I was very impressed by it. Bickel offered interesting ideas, such as his defense of the “passive virtues”. My own work on constitutional courts in Europe was shaped, in part, as a response to Bickel. I tried to make the case that constitutional courts patterned after the centralized model have an “anti-Bickellian” tendency, for they are structurally designed to be relatively activist, not passive.

5. What are some of the big questions ripe for inquiry in your area of research interest?

I think one of the largest questions on the table is how to make sense of the role of domestic constitutions in the context of globalization and regionalization. There is still a lot of interdisciplinary work that needs to be done in this area, especially in order to better understand the forms of democracy in our present and future world.

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Published on March 24, 2017
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When Courts Decide not to Decide: Understanding the Afghan Supreme Court’s Struggle to Decide the Fate of the Dismissed Ministers

–Shamshad Pasarlay, Herat University School of Law and Political Sciences

On November 12, 2016, the Wolesi Jirga, the Afghan parliament’s lower house, began a process of impeaching cabinet ministers who had not been able to spend more than 70 percent of their ministry development budget for the financial year of 2015. As part of this process, the parliament voted seven key ministers out of office. The executive, however, strongly objected to the parliament’s decision to remove these ministers. President Ashraf Ghani instructed the dismissed ministers to remain in office, and asked the Supreme Court to reverse the parliament’s decision. However, as of March 20, 2017 (more than four months since the parliament’s decision), the Court is yet to decide on the constitutionality of the parliament’s decision to remove these ministers. During this time, the parliament several times asked the executive to introduce new candidates to fill the position of the dismissed ministers. The executive, however, is waiting for the final decision of the Court before taking further actions in this regard.

The current political controversy between the executive and the legislature presents the most serious situation facing the Afghan Supreme Court. The parliament has rejected the Court’s jurisdiction in this matter, and has made it clear that it would not accept the Court’s final decision. The parliament maintains that while Article 121 of the Constitution gives the Court the power to review the constitutionality of laws, it does not authorize the Court to decide on the constitutionality of the parliament’s appointment and removal powers. Thus, sensing a possible political backlash from its decision on the constitutionality of the parliament’s power to remove cabinet ministers, the Court has apparently employed strategic avoidance – to date, the Court has decided not to decide this time-sensitive political controversy.

Read the rest of this entry…

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Published on March 22, 2017
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What’s New in Public Law

Vicente F. Benítez R., Constitutional Law Professor, Universidad de La Sabana (Colombia) and LL.M. student at NYU

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 European Court of Justice held that a workplace ban on the wearing of political, philosophical or religious symbols does not necessarily constitute direct discrimination.
  2. The Polish Constitutional Court upheld a bill regulating and limiting public gatherings, which President Duda declined to sign late last year.
  3. The Constitutional Court of South Africa held the Social Development Minister responsible for the social grants crisis and ordered the Social Security Agency (Sassa) with its contractor to continue to pay social grants until another entity is able to do so.   
  4. The Supreme Court of India issued a bailable warrant against Justice Karnan of the Calcutta High Court due to his absence before the Court in a contempt proceeding.   
  5. The Supreme Court of Canada reversed convictions against a defendant who was found guilty based on evidence gathered in a warrantless home entry.
  6. The Zambian Complainants Commission reprimanded Constitutional Court judges over their demand that the public should not be allowed to complain against Constitutional Court officials.

In the News

  1. A United States District Court judge in Hawaii issued a nationwide suspension of President Trump’s new executive order on immigration.
  2. The UK Parliament passed the ‘Brexit’ Bill to authorize the government to trigger Article 50 of the Lisbon Treaty.
  3. Scottish First Minister, Nicola Sturgeon will ask permission for holding a second referendum on Scotland’s independence.
  4. Following the impeachment of President Park Geun, South Korean parliamentarians discuss the possibility of a constitutional amendment to restructure the Presidency.  
  5. Myanmar’s Minister of Religious Affairs declared that the 2008 Constitution should be amended because of its contradiction with Buddhist beliefs as well as the people’s aspirations.
  6. A Diet panel resumed its discussions whether the Japanese Constitution should be amended in order to extend lawmakers’ terms in cases of major disasters.
  7. The European Union will assess planned Turkish constitutional changes in light of the country’s status as a candidate for EU membership.  

New Scholarship

  1. Bui Ngoc Son, The Global Origins of Vietnam’s Constitutions, Illinois Law Review (2017) (discussing four mechanisms of global diffusion of constitutional rights and the case of Vietnam)
  2. Manuel José Cepeda & David Landau, Colombian Constitutional Law. Leading Cases (2017) (providing in English the case law of the Colombian Constitutional Court, along with introduction to the Court in historical and comparative context)
  3. Karen J. Alter & Laurence R. Helfer, Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice, Oxford University Press (2017) (analyzing the most active and successful transplant of the European Court of Justice: the Andean Tribunal)
  4. Craig Martin, The Legitimacy of Informal Constitutional Amendment and the ‘Reinterpretation’ of Japan’s War Powers, Fordham International Law Journal (2016) (examining the legitimacy of the Cabinet reinterpretation of the war-renouncing Article 9 of the Japanese Constitution)
  5. David Bilchitz, Pobreza y Derechos Fundamentales, Marcial Pons (2017) (Spanish edition of ‘Poverty and Fundamental Rights’ (Oxford University Press 2007) with new preface and translation by Jorge Portocarrero Quispe) (providing a justification for fundamental rights and judicial review, and a defence of a revised version of the ‘minimum core approach’ to socio-economic rights)
  6. Ling Li, The Chinese Communist Party and People’s Courts: Judicial Dependence in China, American Journal of Comparative Law (2016) (offering an integrated and coherent account of the relationship between the Chinese Communist Party and China’s courts)

Calls for Papers and Announcements

  1. The WZB Berlin Social Science Center, the European University Institute and the London School for Economics and Political Science invite submissions for the Inaugural Annual European Junior Faculty Forum for Public Law and Jurisprudence to be held at WZB Berlin Social Science Center on June 28-29, 2017.
  2. ICON and the Jean Monnet Center at NYU invite submissions for its workshop on “Public Law and the New Populism” to be in New York City held on September 15, 2017. Abstracts should be sent to daniel.francis@law.nyu.edu by March 31, 2017.
  3. The Comparative Constitutional Law and Administrative Law Quarterly (CALQ) invites submissions to its forthcoming volume. The submission deadline is May 10, 2017.
  4. The Groupe de recherche sur les sociétés plurinationales (GRSP), in association with the Peter MacKell Chair in Federalism at McGill’s Faculty of Law, Laval University and the Université du Québec à Montréal organizes a colloquium on “Canadian Federalism and its Future: Actors and Institutions” to be held on March 23-24, 2017.
  5. The International Journal of Human Rights and Constitutional Studies published a special issue on Public Space and Fundamental Rights (2016).
  6. Externado, Rosario, and los Andes Universities organizes a symposium on “Rethinking and Renewing the Study of International Law in/from/about Latin America” that will take place in Bogota on September 26 to 28, 2017. Abstracts should be sent to paola.acosta@externado.edu.co by April 3, 2017.  
  7. The Centre d’études juridiques européennes of the University of Geneva, Jean Monnet Centre of excellence invites doctoral students and junior scholars to submit proposals summaries for its workshop “The EU as a global actor in…” to be held in Geneva, on July, 2017. The submission deadline is March 27, 2017.
  8. The Society of Legal Scholars invites submissions to its annual conference on “The Diverse Unities of Law” to be held in Dublin, on September 5-8, 2017. The deadline for abstracts and paper proposals is March 27, 2017.  
  9. The journal Comparazione e diritto civile invites paper submissions for its forthcoming issue on “Who needs comparative law?” The deadline for submissions is April 30, 2017.

Elsewhere Online

  1. Stephen Tierney, A Second Independence Referendum in Scotland: The Legal Issues, UK Constitutional Law Association
  2. Ewan Smith & Alison Young,  “That’s how it worked in 2014, and how it would have to work again,” UK Constitutional Law Association
  3. Mark A. Graber, President Trump and American Constitutionalism, OUPblog
  4. Selin Esen, The 2017 Constitutional Reforms in Turkey: Removal of Parliamentarism or Democracy? Blog of the IACL, AIDC
  5. Daniel Marari, Stripped of Dignity: The Struggle for LGBT Rights in Tanzania, AfricLaw
  6. Pierre de Vos, Con Court SASSA judgment: In this Game of Thrones, can Minister Dlamini survive?, Constitutionally Speaking
  7. Satang Nabaneh, New Gambia and the Remaking of the Constitution, ConstitutionNet
  8. Marjorie Cohn, Evaluate New Travel Ban in Light of International Law, JURIST
  9. Yoon Jin Shin & Mattias Kumm, Impeaching Remnants of the Authoritarian Past: A Constitutional Moment in South Korea, Verfassungsblog
  10. Stylianos-Ioannis G. Koutnatzis, State Reform in Greece: Legal and Practical Considerations, Verfassungsblog
  11. Juan Pappier, The ‘Command Responsibility’ Controversy in Colombia, Blog of The European Journal of International Law
  12. Stephan Schill, The Constitutional Frontiers of International Economic Law, Blog of The European Journal of International Law
  13. Conor Gearty, Human Rights To BREXIT …. And Beyond, AUSPUBLAW
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Published on March 20, 2017
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Call for Papers–European Junior Faculty Forum–WZB Berlin Social Science Center

Richard Albert, Boston College Law School

We are pleased to share this Call for Papers for a program co-organized by Professor Mattias Kumm, a member of the ICON-S Governing Council.

The WZB Berlin Social Science Center, the European University Institute and the London School for Economics and Political Science invite submissions for the Inaugural Annual European Junior Faculty Forum for Public Law and Jurisprudence to be held at WZB Berlin Social Science Center on June 28-29, 2017.

The forum intends to address public law scholarship from a theoretically informed doctrinal, interdisciplinary and comparative perspective, contribute to the research of junior scholars, and create an intellectual community of European public law scholars. Public Law focused scholarship from other disciplines (philosophy, political science, history, sociology) is explicitly welcome.

The forum brings together a selected group of early career scholars for what promises to be an intellectually rewarding academic exchange. The papers, selected based upon blind peer-review, will be commented on by two senior scholars.

The author must be based in an academic institution in the European Union or in an Associated Country and have obtained the doctoral degree no longer than seven years prior to the application deadline.

For details see the Call for Papers.

Questions about the European Junior Faculty Forum for Public Law and Jurisprudence as well as submissions should be sent to Professor Mattias Kumm’s office via ejff@wzb.eu.

Deadline for Submissions: April 15, 2017

Decisions will be sent by May 15, 2017. The workshop will be held on June 28-29, 2017 in Berlin at the WZB Berlin Social Science Center.

 

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Published on March 17, 2017
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Five Questions with Adrienne Stone

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions with … ” features Adrienne Stone of Melbourne Law School. Her full bio follows below:

Adrienne Stone holds a Chair at Melbourne Law School where she is also an ARC Kathleen Fitzpatrick Laureate Fellow and Director of the Centre for Comparative Constitutional Studies.

She researches in comparative constitutional law and constitutional theory with particular attention to freedom of expression. Her Laureate Fellowship on the theme ‘Balancing Diversity and Social Cohesion in Democratic Constitutions’ investigates how constitutions, in their design and in their application, can unify while nurturing the diversity appropriate for a complex, modern society. Her work appears in leading journals including the Oxford Journal of Legal Studies, the International Journal of Constitutional Law, the Toronto Law Journal and the Melbourne Law Review. With Cheryl Saunders, she is editor of the Oxford Handbook on the Australian Constitution.

She is First Vice President of the International Association of Constitutional Law; immediate Past Vice President of the Australian Association of Constitutional Law and is an elected Fellow of the Australian Academy of Law. Through the Centre for Comparative Constitutional Studies she is extensively engaged with government and non-governmental organisations including as a  a member of the Advisory Committee for the Australian Law Reform Commission’s Inquiry into Traditional Rights and Freedoms.

She is a member of the editorial advisory board for Cambridge Studies in Constitutional Law, Public Law Review and the Max Planck Encyclopedia of Comparative Constitutional Law. She is an editor of the IACL-AIDC Blog.

She has taught at law schools in Australia, the United States and Canada and delivered papers and lectures by invitation at numerous universities in Australia, North America, Europe and Asia.

1. Tell us about something you are working on right now.

I’m starting two new projects, both funded by the Australian Research Council. The first project is on tolerance in universities. My collaborator is freedom of religion scholar Carolyn Evans, who is also my Dean. The second, an Australian Research Council Laureate Fellowship, will investigate challenges for constitutions in highly diverse multicultural societies. I am also working on proportionality as Australia (at last) is having a proportionality moment that is a providing a very interesting study of the anxieties inspired by the arrival of a transnational legal idea in a local context. I’m close to completing to co-edited volumes: The Oxford Handbook on the Australian Constitution with Cheryl Saunders and a collection of essays on the theme “The Invisible Constitution” with Rosalind Dixon.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

I pride myself on being able to write anywhere–on planes, libraries, in a cafe, in the car while waiting to pick up my kids and I always carry a laptop. But my favourite place to write is at home. More significant than place for me is time: when at all possible, I write for a few hours  first thing in the morning before being distracted by all the other aspects of academic life: my research Centre, my students, the need for coffee, the temptation to gossip with colleagues. It’s a rule that is broken more often than I like to admit but I do it most days and it has been an incredibly valuable practice.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

I read as broadly and eclectically as I can across constitutional law and constitutional theory but I should mention two of my Australian colleagues in particular: Cheryl Saunders whose truly global focus on comparative constitutional law continues to inform and inspire me and legal philosopher Jeffrey Goldsworthy, with whom I usually disagree but from whom I always learn. When it comes to freedom of speech, I read as much as I can by the leading US scholars  again with special attention to those with whom I find myself in disagreement. I balance that with the burgeoning scholarship on freedom of expression coming out of other places, like Asia and with the work of feminist scholars.

4. Is there an article or book that influenced you as a law student and that continues today to be an important reference point for you?

The most important early influences on my academic life lie  in legal theory and philosophy. Jeremy Waldron’s  Law and Disagreement, from which I take the ideal that we should structure our institutions so as to deal respectfully with disagreement, is one. Fred Schauer’s book Free Speech: A Philosophical Enquiry still provides the organising concepts for my thinking about freedom of speech. Rae Langton’s work on freedom of speech and pornography simply dazzled me for her conscription of analytical philosophy of language to cause–a feminist analysis of freedom of speech–otherwise pursued mainly by critical legal scholars.

5. What are some of the big questions ripe for inquiry in your area of research interest?

First, I don’t think we know yet how to think about freedom of speech in this era of ‘post-fact’ politics. More generally, I think there is a lot of scope to think more deeply about the relationship between constitutional theory and comparative constitutional law. Constitutional theory typically presents itself as if it is globally applicable yet it conceals assumptions that are context specific and which comparativism can uncover. How constitutional theory responds to this challenge is a fascinating question.

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Published on March 17, 2017
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On the Silence of Turkish Constitutionalists in the Face of the Amendment

Kemal Gözler, Professor of Constitutional Law, Retired from Uludag University Faculty of Law, Turkey.

[Editor’s Note: This piece was originally published in Turkish on the website of the author, anayasa.gen.tr, on February 20, 2017. It was translated into English by a friend of the author, who would like to remain anonymous.]

Constitutional Amendment Bill Number 6771 of January 21, 2017 (the “Amendment”), which thoroughly changes the Turkish governmental system and affects 69 articles of the Turkish Constitution, has been submitted for referendum. It will be put to a vote on April 16, 2017.

Everyone speaks. The only ones who do not are the constitutionalists!

“Footballers” and “pop singers” speak; constitutionalists are silent!

Why are those who are supposed to speak silent on a subject discussed by everyone?

Once upon a time, we had colleagues who appeared on television as often as anchormen. Where are they now?

Once upon a time, we had colleagues who waged war on military tutelage, who kept harping on concepts such as democracy and human rights. Where are they now?

Some time ago we had an “Association of Constitutional Lawyers” which organized a magnificent “International Congress on Constitutional Law” with the participation of 18 foreign countries and more than 500 participants, where 132 experts, 40 of which are from abroad, made presentations throughout 4 days.[1] Where is it now?[2]

Why are the constitutionalists silent?

They are silent, for they are afraid.

Okay fine, but why are constitutionalists afraid?

Is this fear ungrounded? Is it a misgiving? No, it is not. It is a realistic fear. Constitutionalists are afraid because they might lose their jobs; they might be subjected to disciplinary proceeding; they might be taken into custody or get arrested.

Read the rest of this entry…

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Published on March 16, 2017
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I·CON Volume 15, Issue 1: Editorial

J.H.H. Weiler, University Professor, European Union Jean Monnet Chair, New York University Law School; Co-Editor-in-Chief, International Journal of Constitutional Law

Editorial: The Case for a Kinder, Gentler Brexit

[Editor’s Note: The editorial was previously posted and can be found here.]

10 Good Reads

[Editor’s Note: J.H.H Weiler’s book recommendations were previously posted and can be found here.]

In this issue

This issue of I.CON does equal service to the “international” and “constitutional” elements of our mission, and begins—appropriately enough—with a set of contributions on the frontier between public international law and domestic constitutionalism.  Oddný Arnardóttir leads the way, penetrating the case law of the European Court of Human Rights to find the limits of that institution’s “procedural turn” and to examine the role of presumption and deference in its adjudicative practice.  Next, Alon Harel and Eyal Benvenisti advance a new thesis regarding the relationship between international law and domestic constitutional law, focusing on the distinctive contribution made by competition, tension, and conflict as guarantors of individual liberty.  Gregory Messenger’s article takes us to the World Trade Organization and proposes an aims-based solution to trade’s version of a ubiquitous legal problem: the definition and application of the public-private distinction.  Finally, Mario Mendez sets out the case for ex ante and ex post domestic constitutional systems for the review of treaties, bridging the gap between international obligations and domestic values.

Three more contributors round out our Articles section.  Robert Schertzer takes a close look at the role of adjudication in diverse federations, and specifically at the capacity of federal adjudicators to facilitate negotiation and engagement among competing perspectives.  George Papuashvili traces the lines of the “silent revolution” in Eastern and Central European constitution-making that followed World War I, and the ascendancy of liberal democratic ordering over monarchic absolutism that it inaugurated.  Stephen Gardbaum’s article also explores a revolutionary theme, drawing out the distinctive characteristics of “revolutionary constitutionalism,” and illustrating its paradoxes and tensions—as well as the nature and limits of its impact on political outcomes—by reference to recent developments in Egypt and Tunisia.

Our I.CON Debate! section features a spirited exchange between Maria Cahill and Gareth Davies.  Subsidiarity is the theme and social ontology the battleground, as Cahill’s call for increased forbearance by EU institutions, in recognition of the distinctive nature of the Member States, clashes with Davies’ insistence that the EU’s own ontological claims are stronger and more complex than Cahill’s account allows.

We close, as always, with our Critical Review of Governance section.  Ayelet Berman has the last word in this issue with a transatlantic examination of the role of foreign actors in rulemaking processes in the United States and European Union, offering an account which emphasizes the role of enlightened self-interest in the design and operation of these processes, and which finds in the OECD Best Practices a path to international diffusion of such practices.   And so our issue ends where it began—with the complex relationship between domestic legal orders and the international, multijurisdictional environment in which they operate—leaving us with a handful of new answers, and a great many more questions.  Onward.

JHHW

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Published on March 15, 2017
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ICON’s Current Issue (Table of Contents)

I·CON

 Volume 15 Issue 1

 Table of Contents

Editorial

I.CON Focus: Between International and Constitutional Law

Oddný Mjöll Arnardóttir, The “procedural turn” under the European Convention on Human Rights and presumptions of Convention compliance

Eyal Benvenisti & Alon Harel, Embracing the tension between national and international human rights law: The case for discordant parity

Gregory Messenger, The public–private distinction at the World Trade Organization: Fundamental challenges to determining the meaning of “public body”

Mario Mendez, Constitutional review of treaties: Lessons for comparative constitutional design and practice

 Articles

Robert Schertzer, Federal arbiters as facilitators: Towards an integrated federal and judicial theory for diverse states

George Papuashvili, Post-World War I comparative constitutional developments in Central and Eastern Europe

Stephen Gardbaum, Revolutionary constitutionalism

I.CON: Debate!

Maria Cahill, Theorizing subsidiarity: Towards an ontology-sensitive approach

Gareth Davies, Theorizing subsidiarity: A reply to Maria Cahill

Maria Cahill, Theorizing subsidiarity: A rejoinder to Gareth Davies

Critical Review of Governance

Ayelet Berman, Taking foreign interests into account: Rulemaking in the US and EU

Editors’ Choice of Books 2016

Richard Albert, Lech Garlicki, Tom Ginsburg

 Book Reviews

Po Jen Yap, Constitutional Dialogue in Common Law Asia (Wen-Chen Chang)

Damian Chalmers, Markus Jachtenfuchs & Christian Joerges. The End of the Eurocrats’ Dream: Adjusting to European Diversity (Maja Savevska)

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Published on March 15, 2017
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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. The Supreme Court of the United States ruled that sentencing guidelines are not subject to challenges under the void-for-vagueness doctrine.
  2. The European Court of Justice upheld tax rules on electronic publications.
  3. The European Court of Justice ruled against an obligation of member states to issue humanitarian visas.
  4. The Constitutional Court of South Korea officially removed President Park Geun-hye in an impeachment case.
  5. The Constitutional Court of Colombia removed a ban on working under the influence of narcotics or stimulants.
  6. The Court of Appeal of Kenya ruled that mandatory Saturday classes violate Seventh Day Adventist Church students’ freedom of religion through Sabbath observance.
  7. The Federal Constitutional Court of Germany held that foreign government officials cannot invoke German constitutional rights in seeking to enter the country for political appearances.

In the News

  1. President of the United States Donald Trump signed a new immigration executive order.
  2. The US Senate approved a bill to overturn Obama-administration land management rules.
  3. The Mechanism for International Criminal Tribunals (MICT) referred Turkey to the UN Security Council over the detention of one of its judges.
  4. The Israeli Knesset passed legislation banning entry to foreigners who knowingly call for boycotting Israel.
  5. The Hungarian Parliament passed a legislation approving the detention of asylum seekers in guarded camps.
  6. The National Assembly of Pakistan is to discuss two constitutional amendment bills.
  7. The Court of Cassation of Egypt acquitted former President Hosni Mubarak of charges related to the killing of protesters.

New Scholarship

  1. Oran Doyle, Constraints on Constitutional Amendment Powers, in Richard Albert, Xenophon Contiades and Alkmene Fotiadou (eds.), The Foundations and Traditions of Constitutional Amendment (forthcoming 2017) (arguing against the rubric of ‘unconstitutional constitutional amendments’ and exploring new ways to evaluate constraints on constitutional amendment powers)
  2. Siobhán Mullally and Claire Murray, Guest Editors, Special Issue: Regulating Abortion: Dissensus and the Politics of Rights, 25 Journal of Social & Legal Studies (2016)
  3. Adam Perry, Mercy and Caprice under the Indian Constitution, Indian L. Rev. (Forthcoming) (discussing the Indian Supreme Court’s jurisprudence on grthe powers to grant pardons and similar relief)
  4. Olivier Beaud, The Founding Constitution: Reflections on the Constitution of a Federation and its Peculiarity, 17 Jus Politicum, Thinking about Federalism(s) (2017) (developing the idea of an autonomy of the Federation as a political form that is not a State)
  5. Jau-Yuan Hwang, Ming-Sung Kuo, and Hui-Wen Chen, The Clouds Are Gathering: Developments in Taiwanese Constitutional Law, International Journal of Constitutional Law (forthcoming 2017) (providing an overview of the developments in constitutional law and politics in Taiwan for the year 2016)
  6. Rafael Domingo, Protecting Suprarationality, 74 Persona y Derecho (2016) (arguing that religion should be settled outside the secular legal system, because otherwise the secular legal system would not be truly secular)
  7. Lucas Newbill, Violating Free Speech in the War on Opioid Addiction: The Washington Legislature’s Voice in the Doctor’s Office, 52 Gonzaga Law Review (2017) (discussing a regulation adopted by the Washington legislature in reaction to the current opioid epidemic)
  8. Steven Semeraro, Interpreting the Constitution’s Elegant Specificities, 65 Buffalo Law Review (forthcoming 2017) (arguing that farsighted originalism approach in constitutional interpretation may better capture original meaning of the Constitution than other narrower forms of originalism)
  9. Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, Arizona Law Review (forthcoming 2017) (arguing that these historical arguments are flawed as an understanding of the meaning and purpose of the presidential selection system embedded in the US Constitution)
  10. Ryan Scoville, Ad Hoc Diplomats (2017) (examining the appointments process for irregular agents under the Appointments Clause of the US Constitution)
  11. Vladislava Stoyanova, Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations (2017) (comparing anti-trafficking and human rights frameworks side-by-side in a focused analysis of states’ positive rights obligations under the Council of Europe’s Trafficking Convention and Article 4 of the European Convention on Human Rights)

Call for papers

  1. The UMR International Comparative and European Law (DICE) of the Faculty of Law of Aix-Provence invites submissions for its study day on the theme of “Lawlessness” on October 13, 2017.
  2. The Department of Legal Studies, Law Program and Legal Journal of the Faculty of Law and Social Sciences of ICESI University invites for the Precedente Forum: “25 Years of the Colombian Constitutional Court,” to be held on September 21, 2017.
  3. The Walther Schücking Institute for International Law at the University of Kiel organizes a two-day workshop for PhD students and post-docs entitled “Towards Utopia – Rethinking International Law,” to be held on 19-20 August 2017. Abstracts are due by 8 May 2017.
  4. Loyola University Chicago School of Law hosts its annual Constitutional Law Colloquium in Chicago, to be held on November 3-4, 2017.
  5. The Journal of International Human Rights Law invites submissions for Issue 1 of its second volume.
  6. Utrecht Journal of International and European Law invites submissions for its 85th edition in the summer of 2017 on “General Issues” within international and European law. The submission deadline is April 18, 2017.

Elsewhere Online

  1. Giuseppe Martinico, The Asymmetric Bet of Europe, Verfassungsblog
  2. Abdujalil Abdurasulov, Kazakhstan constitution: Will changes bring democracy?, BBC News
  3. Jan Amilcar Schmidt, The Somali Constitutional Review Process. Taking Stock, ConstitutionNet
  4. Randy Barnett, Out of touch law professor criticizes Judge Gorsuch and “originalism”, The Washington Post
  5. Jonathan Somer, Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts, Blog of the European Journal of International Law
  6. Matt Reeder, State Corruption in ICSID BIT Arbitration: Can it be Estopped?, Kluwer Arbitration Blog
  7. Alonso Illueca and Sophocles Kitharidis, The impact of Morocco’s admission to the African Union on the dispute over the Western Sahara, Opinio Juris
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Published on March 13, 2017
Author:          Filed under: Developments
 

Five Questions with Gráinne de Búrca

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

This edition features Gráinne de Búrca, currently co-president of the International Society of Public Law. Her full bio follows below:

Gráinne de Búrca joined the NYU Law faculty in 2011. Before joining NYU, she held tenured posts as professor at Harvard Law School, Fordham Law School, and at the European University Institute in Florence. Before that, she was Fellow of Somerville College and lecturer in law at Oxford University from 1990 to 1998. She was deputy director of the Center for European and Comparative law at Oxford University, and co-director of the Academy of European Law at the EUI in Florence. She has also been a visiting professor at Columbia Law School, a member of NYU’s Global Law faculty and Straus Inaugural Fellow at NYU.

Her main field of research and expertise is European Union law, and she has written widely on questions of European constitutional law and governance, human rights and discrimination, and international relations. She studied law at University College Dublin and the University of Michigan and was admitted to the bar at Kings Inns, Dublin. She is co-editor of the Oxford University Press series Oxford Studies in European Law, and co-author of the leading OUP textbook EU Law, currently in its sixth edition. She is co-editor-in-chief of the International Journal of Constitutional Law (I•CON) and serves on the editorial board of the European Law Journal and the Journal of Common Market Studies, and on the advisory board of numerous other journals.

1. Tell us about something you are working on right now.

I have been working for a while on a project concerning the uneven use of European Union anti-discrimination legislation in national courts.  I am trying to find an explanation (or explanations) for the paucity of cases being referred to the European Court of justice dealing with issues of racial and religious discrimination, despite the existence of robust EU anti-discrimination legislation in these fields for over 14 years, and despite there being no shortage of conflicts arising on these issues.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

Oddly, I find that I write best whenever I am busiest with other issues (teaching, administration, conference travel etc).  Pressure helps me to write.  In theory I would like to think I am most productive while on sabbatical leave or during the vacations between semesters, but the reality is that I write most effectively when I have real deadlines.  And I need to be disconnected from the internet when I write!  Otherwise, no particular routine.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

There are quite a number of authors whose work I always value reading, but it seems invidious or arbitrary (and maybe ill-advised!) to single out any one.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

Robert Keohane’s book After Hegemony was an important work for me, and Joseph Weiler’s article “The Dual Character of Supranationalism” first led me to become really interested in issues of European integration.

5. What are some of the big questions ripe for inquiry in your area of research interest?

The turbulent state of the European Union today (indeed, the turbulent state of many democracies and of the global order more generally) has – despite the anxiety to which it gives rise – given rise to many important questions for scholars to address.  Apart from the obvious and compelling questions concerning the challenges to constitutional values and institutions across many jurisdictions created by the rise of illiberal populism and the election of leaders who seek to consolidate power and to remove constitutional checks and balances, there is also a series of important questions to be asked about the apparent decline in support for transnational cooperation and integration. These include questions about the conditions for successful forms of transnational integration, and the conditions under which support for such organizations weakens and declines.  The EU represents a dense and highly developed form of transnational cooperation, but a similar decline in support is evident also in the withdrawal from – or challenges mounted by  – various states and governments to a range of other international institutions and organizations.  The question of what kinds of reform to international institutions and organizations (including the EU) may be necessary for their continuation and in order for them to successfully address global and transnational problems seem both intellectually as well as practically urgent, as does the question what kind of innovative institutions or organizations might be imagined to deal with the specific challenges presented today.

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Published on March 10, 2017
Author:          Filed under: Reviews