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

Brazilian Elections and Demonstrations of June 2013: The Rise of Conservatism?

Juliano Zaiden Benvindo, University of Brasília, Brazil

It is not simple to characterize the phenomenon of mass protests and their outcomes. In particular, the connection between a protest and subsequent political or regime changes has been much discussed by scholars of constitutional law. The links, however, are not always obvious. Paradoxically history has shown that after mass protests, subsequent elections tend to yield a conservative backlash rather than the fruition of the social catharsis. In 1968 de Gaulle and his right-wing coalition won a landslide victory in the French Parliament after the famous demonstrations that May. More recently in 2011 Spain underwent a right wing takeover of its Parliament despite thousands of students protesting against the economic crisis. Brazil is no exception. Right on the heels of the demonstrations in June of 2013, the country now seems to be headed towards conservatism, based on the most recent congressional elections. This paradox, whereby popular uprisings demand a new future but the traditional machinations of politics cling to the past, raises the question: Why do social catharses and subsequent elections always seem to move in opposite directions?

During the Confederations Cup in June of 2013, thousands of protesters stormed many of the largest cities in Brazil. From the streets of cities like São Paulo, Salvador, Belo Horizonte, and Rio de Janeiro to the roof of Congress in Brasília, the protests included people from all different societal strata and with widely varying demands. The demonstrations had nominally begun from raising bus fares, but quickly exploded to include a wide variety of agendas in which all different sorts of social, economic, and political issues were raised, including conflicting ones. Calls for social justice and rights for historically oppressed groups stood right next door to calls for banning gay marriage, preserving the ban on abortion or drugs, condemning the quota system in Brazilian universities, or advocating for harsher criminal punishments.

Under the spotlight of international press and the events of the Cup, the protests lost their focus. Their demands went from specific issues to generalities, such as putting an end to corruption, or decrying inflation, or the poor allocation of public funds, or the privatization of government services. “Brazil now seems to be pivoting toward a new phase of interaction between demonstrators and political leaders with its wave of protests,”[1] claimed the New York Times, yet despite this bold claim the protests proved ineffective. Although some political leaders did respond to the protests, no lasting “phase of interaction” ever developed.

Read the rest of this entry…

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Published on November 1, 2014
Author:          Filed under: Analysis
 

Video Interview: Democratic Reform in Hong Kong Featuring Cora Chan

Richard Albert, Boston College Law School

In this installment of our new video interview series at I-CONnect, I interview Cora Chan on the subject of democratic reform in Hong Kong.

In the interview, we discuss recent developments in Hong Kong, the impetus for the current protests in Hong Kong, the constitutional relationship between Hong Kong and China, and the prospect for democratic reform in the region. I also ask her how she became interested in comparative public law.

Cora Chan is an Assistant Professor at the University of Hong Kong, Faculty of Law. Her research concerns constitutional theory, human rights and public law. For her scholarship in these fields, she has been awarded the 2012 Society of Legal Scholars Best Paper Prize, the 2012-2013 University of Hong Kong Research Output Prize, and the Early Career Award from the Hong Kong’s Research Grants Council. She holds degrees from the University of Hong Kong and the University of Oxford.

The full interview runs 21 minutes, and is available here.

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Published on October 30, 2014
Author:          Filed under: Developments
 

Reminder — Call for Papers: 4th Annual YCC Conference

AMERICAN SOCIETY OF COMPARATIVE LAW

YOUNGER COMPARATIVISTS COMMITTEE 

CONFERENCE ANNOUNCEMENT

The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for its fourth annual conference, to be held on April 16-17, 2015, at Florida State University College of Law in Tallahassee, Florida.  The purpose of the conference is to highlight, develop, and promote the scholarship of new and younger comparativists. The deadline for submission of abstracts is November 1, 2014.

Conference Subject-Matter and Eligibility

Submissions will be accepted on any subject in public or private comparative law from scholars who have been engaged as law teachers, lecturers, fellows, or in another academic capacity for no more than ten years as of June 30, 2015.  We will also accept submissions from graduate students enrolled in masters or doctoral programs.

Submission Instructions

To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of no more than 750 words no later than November 1, 2014, to the following address: ycc.conference.2015.abstracts@gmail.com.  Abstracts should reflect original research that will not yet have been published, though may have been accepted for publication, by the time of the conference. Abstracts should also include the author’s name, title of the paper, institutional affiliation, contact information, as well as the author’s certification that she/he qualifies as a younger scholar. Graduate students should identify themselves as such.

Scholars may make only one submission.  Both individual and co-authored submissions will be accepted.  For co-authored submissions, both authors must qualify as eligible younger comparativists.  The conference’s Program Committee will assign individual and co-authored submissions to thematic panels according to subject area.  Proposals for fully formed panels will also be accepted.

Notification

Authors of the submissions selected for the conference will be notified no later than December 20, 2014.   There is no cost to register for the conference but participants are responsible for securing their own funding for travel, lodging and other incidental expenses.  A limited number of travel stipends may be awarded to those who demonstrate financial need.  If you would like to be considered for a travel stipend, please make that request in your submission.

All scholars selected for the conference, other than graduate students who wish to be considered for the Colin B. Picker graduate student prize listed below (and who thus have an earlier deadline), must submit final papers by email to ycc.conference.2015.papers@gmail.com no later than March 1, 2015.

Colin B. Picker Graduate Student Prize

The second annual Colin B. Picker prize will be awarded for the best paper submitted by a graduate student.  To be considered for the award, in addition to submitting an abstract by the above deadline, graduate students whose abstracts are accepted for the conference must also submit their papers in their final form by January 31, 2015, to ycc.conference.2015.pickerpapers@gmail.com with the following subject line:  “Submission for Graduate Student Prize.”  Papers received after January 31, 2015, will not be considered for the award.

Phanor J. Eder J.D. Prize in Comparative Law

In conjunction with the Conference, the second annual Phanor J. Eder prize in comparative law will be awarded from among J.D. or LL.B. students who will have not yet completed their degree as of April 1, 2015. The author(s) of the winning paper will receive a modest stipend giving them partial funding to help defray the costs of attending the Conference and presenting the paper there. There is a separate call with the details of the Phanor J. Eder competition, available here. Final papers will be due on December 31, 2014, in order to be considered for the competition. Inquiries should be directed to Joshua Karton, Chair of the Affiliates Advisory Group of the YCC, at joshua.karton@queensu.ca.

Acknowledgements and Questions

The Younger Comparativists Committee gratefully acknowledges the support of the Florida State University College of Law.  Please direct all inquiries to Professor David Landau, Chair of the Program Committee, by email at dlandau@law.fsu.edu or telephone at 850.644.6341.

The Program Committee

David Landau (Florida State) (Chair)

Ozan Varol (Lewis & Clark) (Vice Chair)

Mohamed Abdelaal (Berkeley)

Dawood Ahmed (Max Planck Foundation)

Richard Albert (Boston College) (YCC Chair)

Sujata Gadkar-Wilcox (Quinnipiac)

Daniel Ghezelbash (Macquarie)

Claudia Haupt (Columbia)

Stefanus Hendrianto (Santa Clara)

John Hursh (McGill)

Neha Jain (Minnesota)

Rajeev Kadambi (Brown)

Joshua Karton (Queen’s)

Alan Koh (National University of Singapore)

Rana Lehr-Lehnardt (UMKC)

Eugene Mazo (Wake Forest)

Sally Richardson (Tulane)

Ioanna Tourkochoriti (South Carolina)

Vanice Valle (Estacio de Sa)

 

The Younger Comparativists Committee

Richard Albert (Boston College) (Chair)

Wulf Kaal (University of St. Thomas)

Sudha Setty (Western New England)

Virginia Harper Ho (Kansas)

Ozan Varol (Lewis & Clark)

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Published on October 29, 2014
Author:          Filed under: Uncategorized
 

The Latest Scholarship at Ius Publicum Network Review

Gabriella M. Racca, University of Turin

As announced earlier this year, I-CONnect and IUS Publicum Network review have entered into a partnership to deepen the study of comparative public law and to enhance its online coverage. The IUS Publicum Network review is a network of the national leading public and administrative law journals in Europe, whose aim is to track and interpret the evolution of public law in each country involved, pointing out its influences on the construction of an administrative and public European law and its connections with other legal cultures.

Issue 1-2014 of the Ius Publicum Nework review is now online. The articles and the reports are available at the links below. We draw your attention in particular to the article on “Corruption as a Violation of Fundamental Rights: Reputation Risk as a Deterrent Against the Lack of Loyalty” (Gabriella M. Racca & Roberto Cavallo Perin), which also appears in Integrity and Efficiency in Sustainable Public Contracts: Balancing Corruption Concerns in Public Procurement Internationally (Bruylant 2014).

Articles

  1. Gabriella M. Racca & Roberto Cavallo Perin, Corruption as a Violation of Fundamental Rights: Reputation Risk as a Deterrent Against the Lack of Loyalty
  2. Francesco de Leonardis, Policies and Powers of Local Government in the Area of Environmental Protection: An Introduction
  3. Alfredo Moliterni, The Multilevel Legal Regime Public Service Concessions
  4. Monica Delsignore, Standing in Environmental Lawsuits in Italy: Some Suggestions from the U.S.

Reports

Public Bodies – Civil Service

  1. Spain: Luis Ortega Álvarez & Isaac Martín Delgado, Organización administrativa

Police – Administrative fines

  1. France: Marie-Pierre Lapeyre, Police administrative–Apports des années 2011-2013

Administrative Justice

  1. Italy: Paolo Cotza, Le pouvoir administratif en appréciation ultra-légale (“merito amministrativo”)

Public Ownership – Public Finance

  1. France: Jean Philippe Orlandini, BiensPropriétés PubliquesApports des Années2012-2013
  2. Spain: Francisco López Menudo & Carlos Mingorance Martín, Bienes y obras públicas

Liability and Accountability

  1. Italy: Elisa Scotti, State Liability for Lawful Acts and the Principle of Compensation

Issue 3/4-2013 of the Ius Publicum Nework review is also now complete. The articles and reports are linked below. The article on “Integrity Challenges in the EU and US Procurement Systems” (D. I Gordon & Gabriella M. Racca) will be of particular interest for American comparativists. This article clarifies the main differences between the US and the EU in tackling issue of the integrity. It focuses on the differences between the two systems’ contractor selection models and emphasizes the extent to which each system allows for subjective evaluation methods by linking the latter to accountability and transparency requirements. The published reports cover the following topics: Public Contracts, Public Law and Economics (Competition and Regulation) and Public Utilities, Judicial Review and Remedies and European Law, Comparative Law, Constitutional Law and International Law–Human Rights.

Articles

  1. José Esteve Pardo, La extensión del derecho público. Una reacción necesaria.
  2. Daniel I.Gordon & Gabriella M. Racca, Integrity Challenges in the EU and U.S. Procurement Systems
  3. Jorge García-Andrade Gómez, La adopción de la estabilidad presupuestaria en la Constitución española
  4. Fabio Saitta, Towards a due process of eminent domain

Reports

Public Contracts

  1. Italy: Hilde Caroli Casavola, Public procurement and globalization

Public Law and Economics (Competition and Regulation) and Public Utilities

  1. Italy: Melania D’Angelosante, State Failures and the “Inclusive Subsidiarity” of the Market in Healthcare at the Time of the Economic Recession
  2. Italy: Maria Grazia Della Scala, State-Owned Enterprises: “CompaniesEnterprises” and Public Entities Organized as Companies. A Review of Applicable Rules
  3. France: Maxime Boul, Droit public de la économie et sevices publicsApport2012

Judicial Review and Remedies

  1. England: Richard Kirkham, Liability and Accountability (Ombudsman)
  2. England: Martin Trybus, The Transposition of the Public Procurement Remedies Directive 2007/66/EC in the United Kingdom

European Law, Comparative Law, Constitutional Law and International LawHuman Rights

  1. France: M. Bertrand Sergues, Droit administratif et droit constitutionnel Apports de la période 2012 juin 2013
  2. France: Salomé Gottot, Droit administratif et droit de la Union Europeenne Apport de l’annee 2012
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Published on October 28, 2014
Author:          Filed under: Developments
 

What’s New in Comparative Public Law

Rohan Alva, Jindal Global Law School

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. In a decision which upholds maternity rights, the Japanese Supreme Court has remanded, for a new trial, a claim of a physiotherapist who was treated unfavourably on account of her pregnancy. Originally, upon request, the claimant’s employer’s shifter her to a less demanding position on account of being pregnant, but did not subsequently reassign her to her previous post once she had given birth; a failure on the part of the employer which the Supreme Court deemed ‘illegal’. The Japanese government has come out in open support of this decision.
  2. Justice Charles Hungwe of the High Court in Zimbabwe ruled that in the absence of a statute enumerating the circumstances in which the death penalty is to be handed down, a court cannot order the execution of a convicted individual. As per Section 48(2) of the Constitution, the presence of ‘aggravated circumstances’ in a murder can invite the death sentence but since no law further defines this provision, a court cannot for itself decide the conditions which merit the death penalty.
  3. The Electoral Court in Bolivia declared Evo Morales the victor of the presidential elections. The president, who will now commence his third term, received nearly sixty one per cent of the polled votes, ahead of the opposing candidate who polled under twenty five percent of the votes.
  4. A federal court in Puerto Rico has affirmed the legal restrictions on same-sex marriages. This decision, however, stands in a minority when compared to the over thirty jurisdictions which allow for same-sex marriages.
  5. A court in Oklahoma, U.S.A, refused to interfere with a law which mandates for doctors carrying out abortions to seek affiliations with hospitals within a predetermined radius.

New Scholarship

  1. Adam S. Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference? (University of Virginia School of Law, Public Law and Legal Theory Research Paper Series 2014-43) (arguing that the presence of enumerated rights in constitutions do not always translate into the ability to properly exercise them, and positing that ‘political rights’ which focus broadly on association based rights are those which are satisfactorily enforceable)
  2. Marcin Matczak, The Semantics of Openness: Why References to Foreign Judicial Decisions do not Infringe the Sovereignty of National Legal Systems (Faculty of Law and Public Administration, Warsaw University) (adopting a language based justification for the use of comparative material in legal reasoning, and theorising that the interpretation of a law should be within a framework of appreciating ‘external reality’ which allows for a departure from dependence on an originalist understanding of law)
  3. Michael Stolleis & Thomas Dunlap, A History of Public Law in Germany 1914-1945 (Oxford University Press, 2014) (traces the turbulent development of Germany’s public law and the role of intellectuals in the development of the architecture of public law)
  4. Geetanjoy Sahu, Environmental Jurisprudence and the Supreme Court: Litigation, Interpretation, Implementation (Orient BlackSwan, 2014) (critically evaluating the position of the Indian Supreme Court between from 1980 to 2010 on the subject of environmental law, and proposing that the decisions reveal a variable, rather than a standardised and uniform approach to environmental protection )
  5. Ronan McCrea, Religion and the Public Order of the European Union (Oxford University Press, 2014) (engaging in an examination of the impact that religion has had on the development of public law in the European Union, and the method by which the European Union seeks to promote pluralism whilst also seeking to control the hold of religion over politics)

In the News

  1. A report of a United Nations committee, headed by Justice Michael Kirby, which inquired into acts of human rights violations in North Korea was challenged by the nation in the U.N. with the North Korean representative questioning the manner in which the committee had interacted with witnesses, and charging the report with falsifying facts.
  2. In a bid to introduce transparency in the functioning of the nearly fifteen thousand lower courts, the Indian government announced that it will ‘digitize’ the records of the courts to ensure speedy online availability of decisions, and details about pending cases.
  3. The United Nations has recommended that Iraq immediately halt the implementation of the death penalty. In the last year itself, one hundred and seventy seven executions took place, which the U.N. considers to have been carried out without basic rights being guaranteed to the convicts who were executed
  4. The Tanzanian Attorney General declared that the nation will hold a referendum on the new constitution in April, 2015. The decision on the referendum has not been welcomed by the political opposition which intends on taking recourse to the judicial system in order to challenge the proposed constitution.
  5. Northern Ireland is set to introduce legislation which will impose a complete prohibition on prostitution. Activists, however, have questioned the logic of the legislation and argue that such laws will be counter-productive and leave ‘sex workers’ in a vulnerable state.

Elsewhere on the Web

  1. Pierre De Vos, When some rights are more equal than others, Constitutionally Speaking
  2. Ravi Amarnath, Canadian constitutional challenge to prohibition on assisted-dying, Oxford Human Rights Hub
  3. Mark Elliot, Beyond Sark: The implications of the Barclay case, Public law for everyone
  4. Jacob Gershman, Supreme Court to consider privacy rights of hotels, WSJ Law Blog
  5. Apoorva Mandhani, Kailash Satyarthi’s legal struggles: PILs facilitating the cause, Live Law

Call for Papers/Conferences

  1. The Association of American Law Schools invites international faculty members to attend its annual meeting in Washington, DC, scheduled for January 2-5, 2015. Registration information is available here.
  2. Entries are invited by the Latin American Journal of International Trade Law for its forthcoming volume. Entries may be in either English or Spanish. All submissions must be made by the 19th of December, 2014.
  3. Papers are called for by the Oil, Gas, and Energy Law Journal and Transnational Dispute Management for a ‘Joint Special Issue on Renewable Energy Disputes.’ All papers are to be sent in by the 15th of January, 2015.
  4. Submissions are invited for the ‘Annual International Conference on Interdisciplinary Legal Studies’ which will be held at St. Anne’s College, Oxford from the 2nd to the 4th of March, 2015. All abstracts are due by the 2nd of February, 2015.
  5. A call for papers has been issued for the ‘International Conference on Law, Patent, and Technology’ which will be held in Bangkok, Thailand from the 21st to the 23rd of January, 2015. Papers are to be submitted by the 15th of November, 2014.
  6. The ANU Migration Program at Australian National University is hosting a conference on ‘Challenges to sovereignty- the impact of migration law and policy’ on the 7th and 8th of November, 2014. Professors Satvinder Juss and Zlatko Skrbis will deliver the keynote addresses.
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Published on October 27, 2014
Author:          Filed under: Developments
 

Invitation to Friends of I-CONnect: Boston College Law School Event on “The War on Japan’s Pacifist Constitution”

Richard Albert, Boston College Law School

On Wednesday, November 5, the Clough Center for the Study of Constitutional Democracy will host a timely panel discussion on “The War on Japan’s Pacifist Constitution” on the campus of Boston College Law School at 12pm in Barat House.

I’m looking forward to moderating this panel featuring Tom Ginsburg (Chicago), Tokujin Matsudaira (Kanagawa) and Franziska Seraphim (Boston College).

Tom Ginsburg has written about the Japanese Constitution in several works, notably in The Endurance of National Constitutions. Tokujin Matsudaira has critiqued the incumbent Abe government’s erosion of the Constitution’s Pacifism Clause. And Franziska Seraphim has written an important book on War Memory and Social Politics in Japan. For my part, I have examined the constitutionality of the Abe government’s problematic efforts undermine the Pacifism Clause in Amending Constitutional Amendment Rules.

Friends of I-CONnect are invited to attend this event. Lunch will be served. Please RSVP by email to clough.center@bc.edu no later than October 31.

Japan

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

Turkey Rolling Back the 2010 Reforms?

–Oya Yegen, Boston University, Department of Political Science

Turkish judges and prosecutors cast their votes last week for the election of 10 regular and 6 substitute new members to the Supreme Board of Judges and Prosecutors (HSYK)[1]. The council’s new makeup has been the center of speculation. HSYK manages the Turkish judiciary and makes decisions regarding the appointment, promotion and expulsion of personnel within the judiciary and in total has 22 regular and 12 substitute members. It is quite unusual that the election process of such an institution is front and center.  In this post, I report on the expected new composition of HSYK, examine why Turkey witnessed such a contested election process, evaluate in retrospect how the 2010 constitutional amendments played out and examine the likelihood that the changes might be reversed in a future amendment.

Read the rest of this entry…

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Published on October 24, 2014
Author:          Filed under: Analysis
 

Invitation to Friends of I-CONnect: Constitution-Making and Constitutional Design at Boston College Law School

Richard Albert, Boston College Law School

Friends of I-CONnect are invited to attend a full-day symposium on Constitution-Making and Constitutional Design on Friday, October 31, at Boston College Law School. Free registration is available here.

Panelists will inquire into the period of transition between old and new constitutions, the mechanics of constitution-making and -breaking, the role that courts play in constitution-making and constitutional design, and non-constitutional influences on constitutional development. The full program appears below.

This symposium is generously funded by the Clough Center for the Study of Constitutional Democracy. Joining me on the organizing committee are Gene Mazo (Wake Forest), Vanessa MacDonnell (Ottawa), Joel Colon-Rios (Victoria-Wellington), Will Partlett (Hong Kong) and Bart Szewczyk (Columbia).

The keynote address will be given by Ran Hirschl, Professor of Political Science and Law & Canada Research Chair in Constitutionalism, Democracy and Development at the University of Toronto.

Darin Johnson, Chief of Staff in the Office of the Special Coordinator for Middle East Transitions (2012-2014) in the U.S. Department of State, will make closing remarks.

 

constitution-flyer

 

Boston College Law School
Symposium on Constitution-Making and Constitutional Design
October 31, 2014

Richard Albert
Convenor

 

Keynote Address: Ran Hirschl, University of Toronto

Panel I: The Period Between Old and New Constitutions

1. Joel Colon-Rios, Victoria University of Wellington
2. Oran Doyle, Trinity College Dublin
3. Kate Glover, McGill University
4. Mark Graber, University of Maryland
5. Rick Kay, University of Connecticut (Moderator)
6. Carissima Mathen, University of Ottawa
7. Ozan Varol, Lewis & Clark Law School

This panel will examine the extraordinary period of time in the life of a country when its citizens decide to abandon one constitutional order and adopt another. How should we understand the time frame before a new constitution-making process actually begins, when the state’s existing constitution may have been rejected but a new constitution is not yet in place? What principles and legal institutions should guide the exercise of political power during such periods, so as to maintain the maximum level of stability and promote the legitimacy of the emerging constitutional order? These are some of the questions that scholars interested in the transition between old and new constitutions must address.

They are questions about the nature and limits of constituent power, about the nature and risk of a break in the chain of legality, and about how constitutionalism should deal with a successful revolution. When examined from the perspective of constitutional design, questions like these move our attention away both from the constitutional text and the internal dynamics of the constitution-making process and force us to analyze and develop mechanisms and strategies to facilitate the birth of a new constitutional order. They also require us to consider the role of the institutions established under the old order (such as courts), as well as the role of principles recognized by the international community (such as fundamental human rights), in controlling the political power of would-be constitution-makers.

The papers presented in this panel will reflect on these and other questions through both theoretical and comparative analysis, and in so doing, they will seek to better understand and analyze the time period in which constitutional transitions occur.

Papers to be published in the peer-reviewed National Journal of Constitutional Law.

Panel II: Constitution-Making and -Breaking

1. Andrew Arato, The New School for Social Research
2. David Landau, Florida State University
3. Eugene Mazo, Wake Forest University
4. Mark Tushnet, Harvard University
5. Mila Versteeg, University of Virginia (Moderator)

This panel will probe the process of constitution-making, rather than the period of time in which it takes place. Scholars have yet to develop robust theories to explain the internal dynamics of the constitution-making process itself, including theories concerning who should write a new constitution, how constitutional framers should be selected, the ways in which they should deliberate, and how new constitutions are best ratified. The existing theories of the constitution-making process tend to be parsimonious and incomplete, and they also do not transfer well across different cultural and political settings. To the extent that the “constitutional moment” provides a useful heuristic device for thinking about constitutional-making, this panel will bring together several leading scholars to explain how the process of constitution-making should be carried out. How should we choose constitutional framers? Where do the ideas that framers have come from? And which factors most influence the provisions that these framers write? By examining the internal dynamics of the constitution-making process from both theoretical and comparative perspectives, this panel will seek to address these questions.

In focusing on these issues, the scholars on this panel will examine the internal mechanics of constitutional moments. As a sovereign state seeks to be governed by a new basic law or to abide by the rules of a new founding document, this panel will seek not only to illuminate the outcome of constitutional deliberations, but also to elaborate on how the process of constitution-making is carried out. The scholars on this panel will also discuss the ways in which old constitutions may be legally retired before they are replaced, and they will work to distinguish the process of constitution-making from the period in which it takes place. These two concepts have been conflated, though they are theoretically and conceptually distinct.

Papers to be published in the Wake Forest Law Review.

Panel III: The Role of Constitutional Courts in Constitutional Design

1. Kevin Cope, Georgetown University
2. David Fontana, George Washington University
3. Gábor Halmai, Princeton University
4. William Partlett, Chinese University of Hong Kong
5. Ruti Teitel, New York Law School (Moderator)

This panel will consider the role of courts in constitution-making. Conventional wisdom holds that courts should play a highly limited role in a process of constitution-making. From a normative standpoint, constitution-making is viewed as a process of higher lawmaking, where “the people” should not be limited by courts in the expression of their “constituent power.” From a more pragmatic standpoint, however, constitution-making is viewed as a process involving highly politicized, non-judicial questions that courts cannot adequately solve. A number of legal doctrines reflect these rationales, including the constituent power doctrine in Latin America, the acts of sovereignty doctrine in the Middle East, and the political question doctrine in the United States. Yet comparative experience reveals that courts often intervene in highly contentious disputes when they engage in the constitution-making process. This panel will consider this involvement. Is it improper for courts to intervene in constitution-making? Do courts help improve the process of constitution-making by forcing compromise and consensus? If courts are indeed to play a productive role in constitution-making, how do we ensure that they do not become captured by a minority faction and undermine the popular will? Finally, how should courts actually confront powerful political forces?

The scholars on this panel will consider these and other questions from both theoretical and comparative perspectives. Drawing on a wide range of sources—including comparative experience and judicial doctrine—they will seek to expand our understanding of the complex relationship between judicial review and constitutional design.

Papers to be published in the Wake Forest Law Review.

Panel IV: Non-Constitutional Influences on Constitutional Law and Constitutional Design

1. Richard Albert, Boston College Law School
2. Francesca Bignami, George Washington University
3. Mohammad Fadel, University of Toronto
4. Vanessa MacDonnell, University of Ottawa
5. Russell Miller, Washington & Lee University
6. Bart Szewczyk, Columbia University
7. Katharine Young, Boston College (Moderator)

This panel will examine the interaction between constitutional and non-constitutional sources of law and the institutions that interpret and apply them. The papers on this panel suggest that constitutional law and constitutional design may invariably be influenced by the conceptual underpinnings and methods of extra-constitutional mechanisms, and vice versa. Constitutional scholarship must therefore account for the sometimes complex relationship between these two bodies of law.

The scholars comprising this panel will focus on how international law, statutes, administrative law, Islamic law and the common law interact with domestic constitutional law. They will also examine the role of institutional actors—including international organizations and tribunals, administrative decision-makers, and legislators—in shaping and pushing the boundaries of domestic constitutional law.

Papers to be published in the peer-reviewed Osgoode Hall Law Journal.

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Published on October 23, 2014
Author:          Filed under: Developments
 

Video Interview: A New Typology of Judicial Review Featuring Joel Colón-Ríos

Richard Albert, Boston College Law School

In this installment of our new video interview series at I-CONnect, I interview Joel Colón-Ríos on the subject of judicial review. His most recent paper, appearing here in the new journal Global Constitutionalism, addresses judicial review and is entitled “A New Typology of Judicial Review of Legislation.”

In the interview, we discuss his four-part typology of judicial review, Commonwealth and Latin American constitutions, as well as his current work-in-progress entitled “What is a Constitutional Transition.” I also ask him how he became interested in comparative public law.

Joel Colón-Ríos is a Senior Lecturer at Victoria University of Wellington in New Zealand, where he teaches courses in public law, comparative law and comparative constitutionalism. His research concerns comparative constitutional law, constitutional theory, democratic theory and Latin American constitutionalism.

The full interview runs 21 minutes, and is available here.

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Published on October 22, 2014
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What’s New in Comparative Public Law

Patrick Yingling, Reed Smith LLP

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

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

Developments in Constitutional Courts

  1. The Supreme Court of Canada heard arguments on whether the country’s ban on euthanasia and doctor-assisted suicide violates the Charter of Rights and Freedoms.
  2. Justice Edwin Cameron of South Africa’s Constitutional Court spoke recently about the symbolism and importance of the high court’s art collection and the need to preserve it.
  3. Pakistan’s Lahore High Court upheld the death sentence for Aasiya Noreen (better known as Asia Bibi), who was convicted of blasphemy for allegedly insulting the Prophet Mohammed while working in a field with several Muslim women.
  4. The U.S. Supreme Court blocked key parts of a 2013 law in Texas that had closed all but eight facilities providing abortions in America’s second most-populous state.
  5. The U.S. Court of Appeals for the Ninth Circuit ruled that an Arizona law that acted to deny bail to individuals in the U.S. illegally and charged with a range of felonies was unconstitutional.

In the News

  1. Shiite muslim cleric Sheikh Nimr al-Nimr was convicted of sedition and other charges in Saudi Arabia’s Specialized Criminal Court and sentenced to death, raising fears of unrest from his supporters in neighboring Bahrain.
  2. The president of Spain’s Catalonia region called off an independence vote that was scheduled for November 9.
  3. Uber Technologies Inc. challenged a French court ruling that deems one of its fastest-growing services to be illegal in France, escalating a fight amid the car-hailing company’s broader battles in Europe.
  4. The Nigerian House of Representatives voted to make 71 amendments to 1999 Constitution.
  5. The French Conseil d’Etat suspended the Ministry of National Education’s decision to abolish aid based on merit to non-beneficiary students. [Link in French]

New Scholarship

  1. Elisa Arcioni, Section 53 of the Constitution: An Overlooked Reference to the Constitutional People, Australian Law Journal, Vol. 87, pp. 784-792, 2013 (exploring the meaning of “the people” in the third paragraph of section 53 of the Australian Constitution)
  2. Theunis Robert Roux, Constitutional Courts as Democratic Consolidators: Insights from South Africa 20 Years On, 2014 (attempting to correct pessimistic and overoptimistic views on constitutional courts as democratic consolidators)
  3. Hamid Harasani, Islamic Law as a Comparable Model in Comparative Legal Research: Devising a Method, 3 Global Journal of Comparative Law (2014) 186-202 (formulating a methodology for comparative legal studies where religious law is one of the comparative models)
  4. Sebastian Jilke, Bart Meuleman & Steven Van de Walle, We Need to Compare, But How? Measurement Equivalence in Comparative Public Administration, Public Administration Review, Forthcoming 2014 (examining the concept of cross-national measurement equivalence in public management and suggesting how to establish equivalence)
  5. Samuel R. Olken, The Decline of Legal Classicism and the Evolution of New Deal Constitutionalism, Notre Dame Law Review, Vol. 89, No. 5, 2014 (concluding that although certain external changes help explain the constitutional transformation of the New Deal era, internal changes in terms of dissenting opinions and the intrinsic nature of Legal Classicism also played significant roles in the evolution of New Deal constitutionalism)

Elsewhere Online

  1. Mohamed Abdelaal, Can The Egyptian Supreme Constitutional Court Extend its Jurisdiction?, JURIST – Academic
  2. Yves Boisvert, What our Supreme Court can teach Spain about secession, The Globe and Mail
  3. Thato Motaung, Child marriage as ‘security’?, AfricLaw
  4. Lissa Griffin, Scrutinizing the Basis for Jury Verdicts, Comparative Law Prof Blog
  5. Jennifer Duncan, Women in Tanzania set for equal land rights – let’s make sure it happens, ConstitutionNet

Calls for Papers / Conferences

  1. The University of Michigan Law School invites submissions for its 2015 Young Scholars’ Conference to be held on March 27-28, 2015, at the University of Michigan Law School, Ann Arbor, Michigan.
  2. The Institute for Global Law and Policy will host an international conference at Harvard Law School to showcase innovative thinking about global law and policy on June 1-3, 2015.
  3. The Vanderbilt Journal of Transnational Law will host its 2015 Symposium, “This is Not a Drill: Confronting Legal Issues in the Wake of International Disasters” on February 13, 2015 at Vanderbilt Law School.
  4. The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School has issued a call for abstracts for its 2015 annual conference, entitled: “Law, Religion, and American Health Care.”
  5. Glocalism has issued a call for papers for its 2015 issue on Global Polity and Politics.
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Published on October 20, 2014
Author:          Filed under: Developments