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I·CONnect

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

The Constitutional Politics of Cohabitation in Romania

Zoltán Pozsár-Szentmiklósy, ELTE University, Budapest

Klaus Iohannis, Romania’s new president, faces a challenging situation right at the beginning of his term: after a harsh campaign, his rival candidate for the presidency, Victor Ponta, remains prime minister and enjoys the support of a significant parliamentary majority. Though they have different powers, the president and the prime minister are both in the executive branch of government.

The semi-presidential system in Romania and elsewhere “combines a popularly elected head of state with a head of government who is responsible to a popularly elected legislature, thus making the model conceptually and analytically distinct from the other two principal constitutional types existing in the world today.”[1] In the near future, it will be revealed whether the relationship between Mr. Iohannis and Mr. Ponta will be one of cooperation or rivalry.  

Read the rest of this entry…

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Published on January 30, 2015
Author:          Filed under: Developments
 

Announcement: Establishment of the Arab Association of Constitutional Law

–Zaid Al-Ali, Senior Adviser on Constitution Building, International IDEA

On 16-17 October 2014, 45 leading scholars, lawyers, judges and jurists met at a conference that was hosted by the Lebanese University in Beirut to establish the Arab Association of Constitutional Law.  It is the first association to focus on constitutional law and to bring together experts in the field from across the region.  Members include individuals from Morocco, Algeria, Mauritania, Tunisia, Libya, Egypt, Sudan, Lebanon, Syria, Jordan, Palestine, Iraq, Kuwait and Yemen.

Following the uprisings that started in Tunisia in December 2010, 10 countries in the region have amended, replaced or considered their constitutional frameworks.  Some progress has been made in the struggle for democratization, while significant challenges remain.  The Association was established in response to these challenges, and in response to the realization that much of the Arab region’s expertise on constitutional law is not being utilized in the effort to achieve greater democratization in our countries.  The Association plans to contribute to continued reform efforts by promoting cross-border learning, by providing objective analysis of the region’s constitutional frameworks, and by actively participating in the drive towards reform.  The Association was launched as a non-governmental organization, and will remain politically and substantively independent.

The Association’s board, which was elected on 17 October 2014, consists of the following individuals: Sufian Obeidat (President; Jordan); Salsabil Klibi (Vice-President; Tunisia); Ghassan Mukheiber (Treasurer; Lebanon); Yussef Auf (Secretary; Egypt); Zaid Al-Ali (member; Iraq); Abderahim Maslouhi (member; Morocco);  Abderahman Mukhtar (member; Yemen).  A scientific committee was elected, and counts amongst its members: Ahmed Ouerfelli (Tunisia); Mahmoud Hamad (Egypt); and Amr Shalakany (Egypt).  Finally, the following individuals were elected to a policy committee: Nabila Mufti (Yemen); Omar Hammady (Mauritania); and Mohamed Ghannam (Egypt).  The Association’s membership naturally remains open to jurists and individuals with a strong interest in constitutional reform in the region.

The Association’s next conference will take place in Cairo in May 2015, and will be hosted by the American University in Cairo.  The conference will have as its general theme: “Shaping constitutional rules to reduce economic disparities in the Arab region”.  A call for papers has been issued and is available in English here and in Arabic here.

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Published on January 29, 2015
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Belgian Constitutional Court Upholds the “Essential Elements” of Power Sharing Deal

Stefan Graziadei, University of Antwerp

The former Belgian Prime Minister Jean Luc Dehaene found Belgium to be a schizophrenic country.[i] He argued that while for Dutch speakers (known as ‘Flemings’) the Belgian polity and its constitutional law are underpinned by the territoriality principle, for French speakers the personality principle was dominant. While the principle of territoriality binds linguistic and cultural rights to a specific territory within the country; the principle of personality allows for these rights to travel with the person. This struggle reflects deeper political interests. Flemings insist on the territoriality principle to protect Dutch as the only official language of their region. French speakers favour the personality principle, both as an expression of citizenship and power, which arises from the higher social standing of the French language. This dualism between the personality and territoriality principles gives rise to Belgium’s “split mind,” the schizophrenia diagnosed by Dehaene, and its lack of a single constitutional identity.

A recent decision of the Belgian Constitutional Court touches this politically sensitive nerve of the Belgian polity.[ii] The judgment has not received many comments,[iii] but it is interesting in a broader perspective for two reasons. First, it offers evidence of the judicialization of “mega politics”[iv] and its political counter-reactions. Second, it shows how constitutional courts can enflame or diffuse political conflicts between communities in pluri-national states with judicial means. Before discussing the core of the judgment, I introduce you to the complex institutional and political context that embeds the decision. Read the rest of this entry…

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Published on January 28, 2015
Author:          Filed under: Developments, Uncategorized
 

What’s New in Comparative Public Law

Angélique Devaux, French Qualified Attorney (Notaire Diplômée), LL.M American Law (IUPUI Robert H. McKinney School of Law)

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. France’s Constitutional Court upholds the deprivation of a French-Moroccan jihadist of his French nationality.
  2. The U.S. Supreme Court heard oral arguments on housing discrimination and traffic stops.
  3. The U.S Supreme Court to hear case on the constitutionality over drugs used in prisoners executions.
  4. The Romanian Constitutional Court ruled unconstitutional the law on cyber security.
  5. The Russia’s Constitutional Court ruled constitutional the Russian civil code rule allowing a debtor to hand over property to a bank with which he had a mortgage.
  6. South Korea’s Supreme Court upheld an appeal court against former MP for sedition and violating the National Security Law by organizing secret party meeting.
  7. The Columbia’s Constitutional Court ruled that the Fenaco coal railway is prohibited to run overnight due to noise. 

New Scholarship

  1. Stephen Gardbaum, Are Strong Constitutional Courts Always a Good Thing for New Democracies? Columbia Journal of Transnational Law, Vol. 53, No.2, 2015 (arguing that the most important and essential goal for transitional democracies is establishing and maintaining the independence of the judiciary)
  2. Cristina Fasone and Nicola Lupo, Transparency vs. Informality in Legislative Committees: Comparing the US House of Representatives, the Italian Chamber of Deputies and the European Parliament, The Journal of Legislatives Studies, 2015, Taylor and Francis (assessing the relationship between transparency of the legislative process and legislative capacity of parliamentary committees in the light of the ICT revolution)
  3. Mohamed Arafa, Whiter Egypt? Against Religious Fascism and Legal Authoritarianism: Pure Revolution, Popular Coup, or a Military Coup D’Etat?, Indiana International and Comparative Law Review, Vol. 24, No.4, 2014 (providing a concise framework of the theoretical and ethical underpinnings of Egyptian politics, discussing the definition of the relevant religious laws and legislation in Egypt and how they can be enacted under Islamic law in the light of the flexible Sharia’s definition and interpretation, especially within the new provisions of the 2014 Constitution)
  4. Richard W. Garnett, Chief Justice Rehnquist, Religious Freedom, and the Constitution, Bradford P. Wilson, ed., The Constitutional Legacy of William H. Rehnquist (West Academic Press, Forthcoming 2015)(reviewing Rehnquist’s contributions to the Court’s Religion Clauses doctrine)
  5. Aileen Kavanagh, What’s so Weak about ‘Weak-Form Review’? The Case of the UK Human Rights Act 1998, International Journal of Constitutional Law (ICON) (forthcoming 2015) (explaining the legal and political dynamics surrounding the operation of the UK Human Rights Act by engaging the distinction between “strong-form” and “weak-form” review)
  6. Ling Li, ‘Rule of Law’ in a Party-State – A Conceptual Interpretive Framework of The Constitutional Reality of China, Asian Journal of Law and Society, Vol. 2(1), 2015, pp.1-20 (identifying and conceptualizing the structural features of the Party-state and proposing a “dual normative system” as a framework to interpret the constitutional reality of China)
  7. Brian Leiter, Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature, text of the 24th Mathew O. Tobriner Memorial Lecture in Constitutional Law to be presented at the University of California Hastings College of the Law, San Francisco, January 12, 2015 (explaining how the U.S. Supreme Court is operating as a kind of super-legislature by making decisions based on the moral and political values of the justices, and not on the basis of legally binding standards)

In the News

  1. Fighting broke out in Nepal’s Parliament following a heated debate about drafting a new constitution.
  2. Thailand impeaches former Prime Minister over corruption.
  3. After Saudi King Abdullah dies, brother Salman has been pronounced king of Saudi Arabia.
  4. Macedonia Parliament voted to ban same-sex marriage by defining marriage as between a man and a woman.
  5. Egypt’s Court of Cassation ordered retrial for policemen connected to 37 deaths
  6. The Caribbean Court of Justice celebrated its ten years of operation with a forum at the University of the West Indies, St Augustine, entitled “CCJ Symposium: Advancing the case of Regionalism and Indigenous Jurisprudence”.
  7. Madagascar’s opposition is to challenge the appointment of Prime Minister in the constitutional court after the administrative court denied to hear the case.
  8. A Parisian criminal court convicted three people for anti-gay messages posted on Twitter.
  9. EU parliament debated new recommendations for TTIP.
  10. The European Central Bank announced a massive bond-buying program into the Eurozone.

Calls for Papers

  1. Koç University Law School, Boston College Law School and the International Society of Public Law invite submissions for a full-day workshop on unamendable constitutional provisions, to be held on the campus of Koç University Law School in Istanbul on Tuesday, June 9, 2015.
  2. The Institute of Advanced Legal Studies calls for papers for a conference on “Anti-Democratic Ideology and Criminal Law under Fascist, National Socialist and Authoritarian Regimes” to be held in London on 10-11 September 2015.
  3. Latcrit calls for proposals for the Twentieth Anniversary Conference of Latcrit to be held in Southern California on October 1-3, 2015. The theme is Critical Constitutionalism.
  4. The McGill Graduate Law Conference calls for papers for its conference to be held in Montreal, Canada on May 29-30, 2015.
  5. The Davis Center for Russian and Eurasian Studies at Harvard University invites submissions of paper proposals for an international conference on Islam in Russia to be held on October 15-16, 2015.
  6. The University of Ottawa, Faculty of Law, Common Law Section, in partnership with The University of Auckland, New Zealand calls for paper for a symposium to explore developments and trends in corporate governance markets to be held in Ottawa, Canada on June 19-20, 2015.
  7. University of Essex, School of Law calls for papers for its ILA British Branch Spring Conference on International Law as a Mechanism for Justice to be held on May 29-30, 2015.
  8. The Scuola Superiore Sant’Anna and the Institute of Law, Politics and Sustainability call for papers for the First Edition of the International Colloquium on Current Issues in Agricultural Law in a Global Perspective to be held in Pisa, Italy on September 17-18, 2015.

Elsewhere on Blogs

  1. Alan Riley, The resilience of the rule of law, opendemocracy.net
  2. Steven D. Schwinn, No Remedy for Inmate when Authorities take Medical Settlement for Cost of Incarceration, Constitutional Law Prof Blog
  3. Michael Muskal, What’s next after Supreme Court agrees to review execution protocols? Los Angeles Times
  4. Anne Applebaum, Europe has survived terrorist attacks before, The Washington Post
  5. Ruthann Robson, Alabama District Judge Declares State’s Same-Sex Marriage Bans Unconstitutional, Constitutional Law Prof Blog
  6. Harlan Cohen, International Law as Behavior Symposium: An Agenda, Opinio Juris
  7. Chris Wester, The Evolution of a More Perfect Union: The Development of Same-Sex Marriage in the United States, Jurist.org
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Published on January 26, 2015
Author:          Filed under: Developments
 

Video Interview: Counter-Interpretation and Constitutional Supremacy, Featuring Joshua Braver

Richard Albert, Boston College Law School

In this latest installment of our new video interview series at I-CONnect, I interview Joshua Braver on judicial review in the United Kingdom and the United States, specifically as it relates to a phenomenon he identifies as “counter-interpretation.” We discuss why, in his view, judicial review in the United Kingdom has struggled to maintain its legitimacy.

Joshua Braver is a doctoral candidate at Yale Political Science and holds a J.D. from Yale Law School.  His focus is democratic and constitutional theory, and his dissertation interrogates different visions of “the people” in popular and revolutionary constitution-making in South America, especially Bolivia and Venezuela.  He also writes about conflict between legislatures and courts over the meaning of constitutional rights.

The full interview, which runs 33 minutes, is available here.

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Published on January 23, 2015
Author:          Filed under: Analysis
 

A “Stunning” Decision of the Polish Constitutional Tribunal: The Ritual Slaughter Case

–Anna Śledzińska-Simon, University of Wroclaw[*]

When a judge is to decide on the conformity of a ritual slaughter ban with a constitution she cannot help but realize that it is material for a landmark decision. Yet, in Poland the full panel of the Constitutional Tribunal missed this chance and rendered a judgment that is wrong – both for procedural and substantive reasons.

In a 9-to-5 decision, the Constitutional Tribunal ruled that the Act on Animal Protection,[1] insofar as it does not permit animal slaughtering (in slaughterhouses) according to specific methods required by religious rites and subjects non-stun slaughter to criminal sanctions, is contrary to the constitutional guarantee of freedom of religion and Article 9 of the European Convention of Human Rights.[2] At first glance, it seems a sound decision. However, the trouble is that the Tribunal’s ruling was too broad: it held that shechita is permissible regardless of who performs it and for what purpose.

In fact, the argument of the Union of Jewish Religious Communities, acting as the petitioner in this case, that the lack of an exemption from the prohibition of non-stun slaughter infringes freedom to practice religion and live according to religious rules on the territory of Poland, was misunderstood. Instead of finding that ritual slaughtering is a constitutionally protected religious practice of a particular community and its members, the Tribunal extended the constitutional protection to thousands of animal breeders and slaughterhouse owners who produce and export kosher and halal meat for profit.

It is quite unusual for the Constitutional Tribunal in Poland to be more rights-sensitive than required, in particular with regard to a minority religion. In 28 years of constitutional adjudication in Poland, there were just 12 decisions concerning freedom of religion and the church versus state relationship, but most of them reaffirmed the privileged position of the Catholic Church and approved of teaching religion in public schools, including religion grades in student records, counting religion grades towards a student’s grade point average, or providing public funding for denominational schools. At the same time, the Tribunal has never struck down a law on the grounds that it violated the position of a minority religion. Surprisingly, in this freedom of religion case, the Tribunal was oversensitive towards politically vital interests of Polish meat producers and exporters.

This comment aims to discuss obvious pitfalls of the reasoning of the Constitutional Tribunal in the ritual slaughter ban decision, while arguing that this case is important for a different reason than being a landmark. It raises interesting questions both about the hierarchy of sources (including the relationship between domestic and EU law) as well as the proper method of exercising proportionality analysis.  Read the rest of this entry…

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Published on January 21, 2015
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Final Call–Deadline January 20–Workshop on Comparative Constitutional Law at the University of Milan

The University of Milan
Department of National and Supranational Law

in collaboration with

The Younger Comparativists Committee 
of the American Society of Comparative Law

request submissions for

Workshop on Comparative Constitutional Law
University of Milan
Milan, Italy
Monday, May 4, 2015
10h00-16h00

The University of Milan’s Department of National and Supranational Public Law and the Younger Comparativists Committee of the American Society of Comparative Law welcome the submission of papers for a full-day workshop on comparative constitutional law, to be held on the campus of the University of Milan on Monday, May 4, 2015 from 10h00 to 16h00.

This workshop is convened by Antonia Baraggia (Milan), Cristina Fasone (EUI), and Richard Albert (Boston College).

Purpose of Workshop

The purpose of this workshop is to convene a group of younger scholars whose primary field of research is comparative constitutional law.

Structure of Workshop

This full-day workshop will feature 5 papers selected through this Call for Papers. The day will begin at 10h00. Each paper will be allocated one hour of time, including 15 minutes for the author’s presentation and 45 minutes for group discussion.

Eligibility

Submissions are invited from younger scholars who have been teaching and/or researching in the field for no more than ten years.

Submission Instructions

Interested scholars should email no more than one (1) paper by January 20, 2015 to the following address: judy.yi@bc.edu. Papers should be no longer than 30,000 words, and may not have been published by the time of the workshop. Preference will be given to papers that are still in development. Scholars should identify their submission with the following subject line: “Milan—Paper Submission—Comparative Constitutional Law Workshop.”

Notification and Participation Requirements

Successful applicants will be selected by a Workshop Selection Committee and notified no later than February 20, 2015.

Costs

There is no cost to participate in the workshop. Successful applicants are responsible for securing their own funding for travel, lodging and other incidental expenses.

Questions

Please direct inquiries in connection with this workshop to Antonia Baraggia (Milan) by email at antonia.baraggia@gmail.com.

Please circulate this Call for Papers widely.

Workshop Selection Committee

Antonia Baraggia (Milan)
Cristina Fasone (EUI)
Richard Albert (Boston College)

Younger Comparativists Committee

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

About the University of Milan – Department of National and Supranational Public Law

The Department of Italian and Supranational Public Law at the University of Milan promotes and coordinates scientific research and teaching in administrative, constitutional, international, European Union and procedural civil law. The Department publishes and publicizes scholarship; organizes seminars as well as national and international meetings; manages relationships with equivalent European and world scientific institutions; maintains connections with academic institutions at home and abroad, and promotes scholarly exchange among professors and researchers. Consistent with the guidelines indicated in the European Research Area (ERA) Project, the Department favors a multidisciplinary approach to research.

About the Younger Comparativists Committee

The Younger Comparativists Committee (YCC) is a committee of the American Society of Comparative Law (ASLC), one of the world’s leading learned societies for the study of comparative law. The YCC serves as a forum for younger comparative law scholars (with ten years or fewer of faculty experience), creates opportunities for younger comparativists to develop and share their research, and facilitates and promotes the scholarly exchange of ideas and research in all areas of comparative law. It hosts an annual global conference in comparative law and advises the ASCL in its activities related to younger comparativists. For more, please visit: http://www.ascl.org/younger-comparativists.

About the Convenors

Antonia Baraggia Antonia Baraggia is Research Fellow in Constitutional Law at University of Milan, Department of National and Supranational Public Law. She has been Visiting Fellow at Fordham University School of Law. Baraggia holds a PhD in Public Law from University of Turin. She serves as one of the members of the Affiliates Advisory Group of the YCC. Her research interests include citizenship, federalism, bicameralism, human rights, the right to education and the autonomy of Universities considered in a comparative perspective.

Cristina Fasone is a Max Weber Post-Doctoral Fellow in Law at the European University Institute, Florence, where she is also one of the coordinators of the project on “Constitutional Change through Euro-Crisis Law.” Her research focuses on parliaments and Constitutional Courts in the EU and on forms of government. She holds a PhD in Comparative Public Law from the University of Siena and she teaches Comparative Public Law at LUISS Guido Carli University of Rome. She has been a Visiting Researcher at the Georgetown University Law Centre (US) and a Visiting Scholar at the Victoria University of Wellington (NZ). Cristina Fasone serves as one of the members of the Affiliates Advisory Group of the YCC.

Richard Albert is a constitutional law professor at Boston College Law School, where he received the 2013 and 2014 Anthony P. Farley Award for excellence in teaching. His research focuses on comparative constitutional change and amendment. He serves as Chair of the YCC, an elected member of the Executive Committee of the American Society of Comparative Law and the International Academy of Comparative Law, a member of the Governing Council of the International Society of Public Law, a member of the Scientific Advisory Board of the International Journal of Constitutional Law, and a founding editor of I-CONnect. Prior to joining the faculty at Boston College Law School, he served as a law clerk to the Chief Justice of Canada. Richard Albert holds degrees from Yale, Oxford and Harvard.

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Published on January 20, 2015
Author:          Filed under: Developments
 

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 US Supreme Court agreed to hear oral argument on the scope of the right to marry.
  2. The Constitutional Court of Turkey will decide  whether penal courts of peace should be eliminated.
  3. The US Supreme Court refused to hear another challenge to the Patient Protection and Affordable Care Act.
  4. A Turkish court banned access to the website of the French magazine Charlie Hebdo.
  5. The US Supreme Court heard arguments concerning the Natural Gas Act in ONEOK Inc. v. Learjet Inc.

In the News

  1. A criminal court in Egypt dismissed charges of embezzlement against former President Mubarak.
  2. In UK, plans to restrict judicial review were withdrawn for further consideration.
  3. The US Supreme Court is set to decide a religious rights case.
  4. Michigan gun legislation vetoed by governor.
  5. Human Rights Watch (HRW) announced that Tunisia failed to answer unlawful killings during the popular uprising in 2011.

New Scholarship

  1. Re-Exploring Subnational Constitutionalism. A Special Issue, 6(2) Delledonne, G. Martinico, P. Popelier (eds) Perspectives on Federalism (2014) (collecting papers on subnational constitutionalism presented at the latest World Congress of the International Association of Constitutional Law in Oslo)
  2. Scott J. Shackelford & Andraz Kastelic, Toward a State-Centric Cyber Peace? Analyzing the Role of National Cybersecurity Strategies in Enhancing Global Cybersecurity (2015) (assessing the notion that nations bear the primary responsibility for managing cyber-attacks and mitigating cybercrime by analyzing thirty-four national cybersecurity strategies)
  3. Albert H. Y. Chen, Constitutions, Constitutional Practice and Constitutionalism in East Asia (discussing the types of regimes that have existed in modern East Asia, before proceeding to investigate the relationship between constitutions and regime types)
  4. Brian Dennison, The political question doctrine in Uganda: A reassessment in the wake of CEHURD, (18) J Law, Democracy & Development 264 (2014) (explaining the political question doctrine and its role in achieving separation of powers and allocating of government responsibilities in Uganda)
  5. James Stellios, The Centralisation of Judicial Power within the Australian Federal System, 42(2) Federal Law Review 357 (2014) (considering the patterns of centralisation within the Australian federal judicial system, and how the architecture of judicial federalism is subject of less attention.)

Calls for Papers

  1. Koç University Law School, Boston College Law School and the International Society of Public Law invite submissions for a full-day workshop on unamendable constitutional provisions, to be held on the campus of Koç University Law School in Istanbul on Tuesday, June 9, 2015.
  2. The Law Departments of Universitat Pompeu Fabra, Barcelona and University of Trento welcome submissions for a comparative constitutional law seminar to be held on July 9-10, 2015 in Trento, Italy.
  3. The McCoubrey Centre for International Law invites submissions for its second conference for research scholars and early career scholars, addressing questions surrounding customary international law to be held on July 2-3, 2015 at the University of Hull School of Law.
  4. The European Society of International Law has issued a call for papers for its 11th Annual Conference to be held in Oslo, Norway on 10-12 September 2015.
  5. The International Journal of Law and Legal Jurisprudence Studies is now accepting submissions for its new volume.
  6. Utrecht Journal of International and European Law invites submissions for its upcoming issue.
  7. The University Institute for European Studies (IDEE), Jean Monnet Centre of Excellence at CEU San Pablo University, with the support of the European Commission, is now considering abstracts for an International Conference on “Solidarity in Hard Times. Solidarity and the European Social Model in times of economic crisis.” The conference will take place at CEU San Pablo University (Madrid) on the 11th and 12th June 2015.
  8. University of Western Ontario in London, Canada will host the 2015 Western Law Interdisciplinary Graduate Student Conference on May 21-22, 2015. The conference theme is “Law: Helping Hand or Iron Fist?” Submissions are now open.

Elsewhere on Blogs

  1. Jacob Gershman, Do NYC Cops Have a First Amendment Right to Protest De Blasio?, WSJ Law Blog
  2. Gautham Nagesh, Republican Lawmakers Propose Net-Neutrality Legislation, WSJ Law Blog
  3. Steven D. Schwinn, Does the Natural Gas Act Preempt State Antitrust Claims?, Constitutional Law Prof Blog
  4. Shoba Sivaprasad Wadhia, Felons, Families and Prosecutorial Discretion, Jurist
  5. Gerard Magliocca, A National University, Concurring Opinions
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Published on January 19, 2015
Author:          Filed under: Developments
 

Editor’s Choice: Lech Garlicki

Lech Garlicki, University of Warsaw

[ICON Editors’ Choices for New Year Readings and Gifts: ICON’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them over the past year. They write about books, not necessarily published in 2014, but read or reread in the past year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or comparative constitutional law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.]

Reading is fun, but it is a time-consuming activity and, being confronted with a mass production of new publications, the choice is often instrumental to our current research. Thus a lot remains unread and, what is worse, there is no way to establish a “canon” of newest books and articles. That is why my selection of books is not governed by any rational considerations. I based this selection on “generational parity,” picking one book written by a young and ascending scholar, another one by a well-established scholar of the middle generation and, finally, the last one delivered by one of the leading scholars of a global dimension. As is usual in constitutional law, all of these authors write about courts, constitutions and rights, but this does not mean that their approaches are the same.

 

Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective, by Federico Fabbrini. New York: Oxford University Press. 2014.

This book undertakes a two-fold enterprise. On the one hand, it offers an interesting and complete presentation of four areas in which challenges and transformations of fundamental rights are particularly instructive (due process for alleged terrorists, voting rights of non-citizens, the right to strike and, finally, abortion). In each of those areas Fabbrini discusses legislative regulation and judicial decisions of the leading European countries and institutions, and also includes references to the U.S. situation. Read the rest of this entry…

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Published on January 16, 2015
Author:          Filed under: Editorials
 

Soundbite Rules

Or Bassok, Max Weber Fellow, European University Institute

isc

The picture above, showing the Israeli Supreme Court in the background, is not a photomontage. This is how the Israeli Supreme Court (hereinafter: the Court) looks from the rooftop of a new movie theatre in its close vicinity.[1]

In some ways, this picture captures the argument of my forthcoming Article, The Israeli Supreme Court’s Mythical Image – A Death of a Thousand Sound Bites. Courts reside in majestic buildings partly in order to create an “awe inspiring” sense that will ensure public support.[2] This attempt to ensure public legitimacy based on legitimating symbols is hindered in the setting shown in the photo by placing entertainment in the vicinity of the Court’s building, and not by any reasoned arguments.

Similarly, based on an empirical study of the coverage of the Court in television news editions, I show that the erosion of the Court’s mythical image began because of the rise of entertainment logic in news coverage as a result of the entrance of a second commercial channel (Channel Two) in 1993. The mythical image that controlled television coverage of the Court from the inception of the public broadcaster (Channel One) in 1968, and up until 1992, was dissolved not by normative arguments against the Court’s rise of power but by “infotainment.” The shift in the medium led to a shift in the coverage of the Court. Rather than an expert, apolitical institution, the Court has been presented more and more as influenced by political and personal considerations, just as the other branches of government.

In this post, I first present the puzzle at the basis of my empirical investigation of the coverage of the Court. Second, I briefly explore the findings on the coverage of the Court between 1993 and 1996. Next, I discuss the idea that there are shifts in the manner in which we imagine social reality. In the article, I argue that the “eyeglasses” through which Israelis have been viewing the Supreme Court have changed. For some political scientists, my attempt to extract a solidified notion of a prism, that is more than the sum of the data I collected, may seem strange, not to say mistaken. My aim in this post is to further explain my methodology.[3] I believe that this idea of “eyeglasses” (or in the professional jargon: social imaginary), is relevant to any constitutional scholar who aims to give a thick description of a constitutional culture. I conclude this post by discussing the beginning of an experimental live coverage of some of the Court’s oral hearings.

Read the rest of this entry…

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Published on January 14, 2015
Author:          Filed under: Analysis