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

Developments in Swedish Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Swedish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


–Thomas Bull, Justice of the Supreme Administrative Court, LL.D., Associate Professor (docent) and former Professor (full) in Constitutional Law, Uppsala University, and Anna Jonsson Cornell, Professor (full) in Comparative Constitutional Law and Associate Professor (docent) in Constitutional Law, Uppsala University.

I. Introduction

Politically, the migration situation in Europe played a large role in Swedish politics throughout 2016. Several of the measures adopted by the Swedish Parliament and Government in order to cope with the situation have constitutional implications, touching upon, for example, border control and the division of powers between the state and municipalities. The impact of the new EU data protection regime on Swedish law has also been devoted a lot of attention, most recently as a result of the decision by the CJEU on December 12, 2016, in the Tele2 case.

Sweden is a parliamentary democracy, the Instrument of Government (IG) (Regeringsformen), 1:1, 4, 6, and a unitary state with a constitutionally protected local self-government. The power and status of local authorities are regulated in the constitution (IG 1:1(2), ch. 14), although the legislature has explicitly abstained from laying down a constitutional definition of the scope and meaning of local self-government.[1] The local authorities’ taxation right (IG 14:4) together with the statement in IG 14:2 that local authorities are responsible for local and regional matters of public interest based on the principle of local self-government, is the primary expression of local self-government. All matters concerning the competence and responsibility of local authorities, including principles concerning the organization and working procedures of local authorities together with local taxation, must be regulated by an act of law (IG 14:2, 8:2(3)). An explicit reference is made to the principle of proportionality in IG 14:3 which states Any restriction in local self-government should not exceed what is necessary with regard to the purpose of the restriction. Local authorities have no regulatory powers based on the constitution; a delegation from the Parliament (Riksdag) is necessary. Such a delegation can be direct from the Riksdag to local authorities (IG 8:9) or indirect via the Government (IG 8:10).

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Published on October 20, 2017
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A Plea for Dialogue: An Open Letter on Catalonia from Constitutional & International Law Scholars

Zoran Oklopcic, Department of Law and Legal Studies, Carleton University

The Center for Constitutional Transitions, in partnership with the Edinburgh Center for Constitutional Law, has released an open letter on the constitutional crisis in Catalonia, “A Call for Dialogue. The coordinators of the letter are Sujit Choudhry, Director of the Center for Constitutional Transitions & I. Michael Heyman Professor of Law, University of California, Berkeley; Robert Howse, Lloyd C. Nelson Professor of International Law at the New York University School of Law; Zoran Oklopcic, Department of Law and Legal Studies, Carleton University; and Asanga Welikala, Director, Edinburgh Centre for Constitutional Law & Lecturer in Public Law, School of Law, University of Edinburgh.

A Call for Dialogue:

  • calls on the heads of Spanish and Catalan governments to act in a good faith, open-minded constitutional dialogue on the political status of Catalonia;
  • urges Mr. Puigdemont, the President of Catalonia, to demonstrate the sincerity of his commitment to dialogue by acknowledging the legitimate concerns of those who doubt that his government has a democratic mandate to pursue the secession of Catalonia;
  • proposes that the best way to dispel those doubts is to organize a referendum that would provide a more accurate indication of the aspirations of the Catalan people;
  • urges Mr. Rajoy to publicly recognize such aspirations as, in principle, legitimate, and to refrain from using repression to suppress them;
  • calls on both sides to embrace a popular referendum as the best means of obtaining a clearer picture of the extent of the challenge that Catalan aspirations for independence pose to the Spanish constitutional order; and
  • invites both sides to work towards a negotiated constitutional settlement that would protect constitutional rights of everyone involved, giving due regard to Catalan political aspirations, in conformity with the ideals of democracy and the rule of law.

The letter is signed by a distinguished group of constitutional and international law scholars and is open for signature at http://www.constitutionaltransitions.org/catalonia.

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Published on October 19, 2017
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Book Review: Antonios Kouroutakis on Frank Fagan & Saul Levmore’s “The Timing of Lawmaking”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Antonios Kouroutakis reviews Frank Fagan & Saul Levmore’s “The Timing of Lawmaking” (Edward Elgar 2017).]

Antonios Kouroutakis, IE Law School, Madrid

There has been much ink shed about lawmaking; from the law and the politics of lawmaking to the due process of lawmaking and from constitutional lawmaking to judicial lawmaking. However, little attention was paid until recently to the timing of lawmaking and the overall interaction between time and laws. It is said that “timing is everything” but the timing of lawmaking, whether a law is temporary or not, whether such law will expire or be activated after a certain period of time, whether a law has a short term or a long term effect seems to be a secondary consideration.

The academic interaction between time and laws, which was opened up the last decade with a series of monographs[1] and articles,[2] is substantially widened with the Frank Fagan’s and Saul Levmore’s edited book on “The Timing of Lawmaking”. With this new edited book, which includes a mixture of contributions from well-established and career – younger scholars, light is shed on some neglected aspects of the complex and multifaceted relationship between lawmakers and time while fresh perspectives are offered on how law’s architecture is affected by time.

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Published on October 19, 2017
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Developments in Austrian Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Austrian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Konrad Lachmayer, Professor of Public and European Law at the Sigmund Freud University in Vienna; Ingrid Siess-Scherz, Judge at the Austrian Constitutional Court

I. Introduction

The year 2016 was dominated by the Austrian presidential elections, which were closer than ever before. The drama levels were increased when the Constitutional Court annulled the result of the run-off election (the first time this had happened in Austrian constitutional history). In the end, the (relatively) clear majority achieved against the Freedom Party candidate in the rescheduled election in December 2016 concluded an eventful year in politics.

Besides these core constitutional developments, it is worth mentioning that the role of the Constitutional Court is changing, with the Court´s competences having been extended in the last few years. In 2014, it gained the competence to review the procedures of the parliamentary investigative committee,[1] which led to important case law in 2015. Meanwhile, since it had not been possible in the traditional Austrian constitutional framework for an individual to file a constitutional complaint against a judgment of an ordinary court, a new kind of legal protection was introduced in 2013,[2] giving parties in civil or criminal law cases at ordinary courts the possibility to file a constitutional complaint against the statutory provisions applied by the ordinary court of first instance; the Constitutional Court can now review the constitutionality of the respective provisions at the request of a party and not only at the request of the court. The scope of this access to the Constitutional Court was significantly increased by the Constitutional Court in 2016.[3]

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Published on October 19, 2017
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Governing in a Liberal-Constitutional State: Dealing With the Clash Between Legality and Legitimacy in Chile and Spain (I-CONnect Column)

Javier Couso, Universidad Diego Portales & Utrecht University

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

I.

In a constitutional state, law is supposed to be the ultimate benchmark that governmental acts ought to be measured against. Hence that old axiom of Public Law, according to which while a private individual can do whatever she wants –unless it is expressly forbidden by law—, state entities can only do that which is expressly permitted by law.

The centrality of law for the operation of a constitutional state does not, however, exhaust the issue of the nature and scope of governmental action. In fact, recent developments in Spain and Chile reveal that, while the above is the general rule, there are instances in which good governance ought to include actions by the administration which –if not against the law— go beyond it.

II.

In the case of Chile, the issue came about when a group of four Mapuche activists (who have spent over eighteen months in so-called ‘preventive prison,’ while waiting trial for arson) started a hunger strike as a way to protest the use of the harsh anti-terrorist legislation being applied to them for acts which they consider do not qualify as ‘terrorist’, and which, according to most international human rights observers, do not fully respect procedural due process standards. Confronted with the actual risk that one of the Mapuche activists might die, the government asked the courts to allow the strikers to be held under home arrest instead of preventive prison. Chile’s government action was immediately denounced by domestic conservative groups as a ‘capitulation’ against a group of violent terrorists, as well as an action that weakened the rule of law. The administration replied that its duty to govern included preventing the escalation of the centuries-old conflict between the Mapuche and the Chilean state (which the death of a group of hunger strikers would most certainly generate).

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Published on October 18, 2017
Author:          Filed under: Analysis
 

Inaugural International Society of Public Law (ICON-S) Book Prize

Richard Albert, Boston College Law School

The International Society of Public Law (ICON-S) is pleased to announce the launch of the International Society of Public Law Book Prize. In line with the Society’s mission, the prize will be awarded to an outstanding book in the field of public law, understood as a field of knowledge that transcends dichotomies between the national and the international as well as between Constitutional Law and Administrative Law. Preference will be given to scholarship which, in dealing with the challenges of public life and governance, combines elements from all of the above with a good dose of political theory and social science.

The first book prize will be awarded at the Society’s next annual meeting taking place on June 25-27, 2018 in Hong Kong to a book published in the two calendar years prior to the conference (2016-2017). The winner is selected by the Society’s Book Award Committee which for the period 2017-2018 consists of Anne Peters (chair), Jeff King, Nico Krisch, and Joana Mendes.

The nomination process is open now!

Members of the Executive Committee of the ICON-S and the Society’s Council, groups of at least three ICON-S members, book review editors of academic journals, as well as publishing houses are invited to nominate books. Please note that proposals coming directly from authors will not be considered and that edited books are not eligible for nominations. The deadline for the submission of nominations is the 31st of December 2017.

Nominations can be made via e-mail, together with an up to 200 word long justification of the proposal, to icons@icon-society.org (reference: Book Prize, attn. of the chairperson of the Book Prize Committee).

Please also consult the procedures for the ICON-S book prize on the webpage of the ICON-S for further information on the nomination procedure.

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Published on October 17, 2017
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Hong Kong’s Unique “Co-Location” Arrangement

Dr. P. Y. Lo, Barrister-at-law, Gilt Chambers, Hong Kong; Faculty of Law, The University of Hong Kong

As Spain contemplates resuming direct rule over Catalonia, an autonomous region of Spain, by invoking the nuclear provision of Article 155 of the Spanish Constitution in October 2017, [1] at the other side of the Globe, Hong Kong, a Special Administrative Region of China, contemplates petitioning the Chinese Central Authorities for a grant of power to enable it to enact legislation to regard one part of Hong Kong as outside Hong Kong’s territory and jurisdiction, so that a simultaneous decision of the Chinese Central Authorities would authorize the stationing of Chinese officers and sanction the application of Chinese laws and jurisdiction to the same part of Hong Kong.

These are convoluted and contorted constitutional manoeuvers. If China wishes to impose direct rule on one part of Hong Kong back, there are direct ways of doing so, such as causing its State Council, the highest executive authority, to amend the administrative division map of the Hong Kong Special Administrative Region (HKSAR); [2] or proposing the National People’s Congress (NPC), the highest organ of state power, to amend the national law that governs the HKSAR, the Basic Law of the HKSAR. [3] This short note seeks to explain why these moves are taking place and examine whether they are justified.

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Published on October 17, 2017
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What’s New in Public Law

Nausica Palazzo, Ph.D. researcher in Comparative Constitutional Law (University of Trento)

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 Constitutional Court of Colombia ruled that the peace deal with FARC cannot be amended for 12 years.
  2. The Supreme Court of India held that sex with minor bride constitutes rape.
  3. The U.S. Supreme Court dismissed one of the two travel ban cases.
  4. The French Constitutional Court found the French 3% surtax on dividend distributions to be unconstitutional in its entirety.
  5. The high court of Cape Town declared unconstitutional a law for failure to impose full and continuous disclosure of information concerning private funding of political parties.
  6. The Austrian Constitutional Court upheld the Austria Bank pension law, imposing higher contributions to shift staff into the state pension system.
  7. Malta’s Constitutional Court refused to find that the human rights of a man wrongfully convicted of daughter’s rape have been violated.

 In the News

  1. Right-wing parties win the Austrian general elections.
  2. South Africa’s Supreme Court of Appeal ruled that prosecutors should reinstate bribery and corruption charges against Zuma.
  3. The state of Washington has filedlawsuit against the Trump’s expansion of religious objections over the contraceptive coverage mandate under ACA. Pennsylvania followed.
  4. The Supreme Court of Indonesia ordered the government to restore public water and revoke its contract with private water utilities, for failure to protect right to water.
  5. The Venice Commission has urged Ukraine to strengthen the independence of the Anti-Corruption Court.
  6. The Parliament of Georgia overrides the presidential veto on the constitutional bill.
  7. A UK High Court rejected a challenge under the Human Rights Act 1998 to the law prohibiting assisted suicide.
  8. Germany ratified the “Istanbul Convention” prohibiting violence against women and domestic violence.
  9. The Prime Minister of Japan called for a constitutional amendment introducing the principle of civilian control over the country’s Self-Defense Forces.
  10. Former Prime Minister wins Kyrgyzstan’s presidential election in the first round.

New Scholarship

  1. Richard Albert, Single-Subject Constitutional Amendments, Boston College Law School Legal Studies Research Paper No. 466 (suggesting that amending the Constitution of Canada–one of the world’s most difficult to amend–could become easier under a new single-subject rule that prohibits omnibus amendment bills but permits multiple single-amendment bills only if voted on separately and differentiated by subject-matter)
  2. Or Bassok, The Arendtian Dread: Courts with Power, Ratio Juris (forthcoming) (offering a new reading to Hannah Arendt’s obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but unfit to power)
  3. Yan Campagnolo, A Rational Approach to Cabinet Immunity Under the Common Law, 55 Alberta Law Review 1 (2017) (providing an account of the contours of the public interest immunity under the common law, and exploring the issue of whether judges are better placed than public officials to adjudicate such claims)
  4. Arthur Dyevre, Nicolas Lampach, & Nicolas Lampach, The Future of European Legal Scholarship: Empirical Jurisprudence, (2017) (advocating in favor of the emergence of an “Empirical Jurisprudence,” and for the application of the methodology of the social sciences to European legal research)
  5. Stephen Gardbaum, What Makes for More or Less Powerful Constitutional Courts? UCLA School of Law, Public Law Research Paper No. 17-37 (2017) (addressing the uncertainties surrounding claims that one or other constitutional court is among the most powerful in the world: what is the proper measure of judicial power, what are its components, and what explains a court’s overall strength or weakness)
  6. Jena McGill, Now Its My Rights Versus Yours’: Equality in Tension with Religious Freedoms, 53 Alberta Law Review 3 (2016) (offering an account of the Canadian jurisprudence featuring a tension between the equality rights of gay, lesbian, bisexual, and queer people and the religious freedoms of faith-based communities)
  7. Douglas NeJaime, The Family’s Constitution, 32 Constitutional Commentary 413 (2017) (exploring in depth the interaction between family law and constitutional law, and debunking the myth of them being “relatively separate spheres”)

Calls for Papers and Announcements

  1. ICON-S is pleased to announce that its 2018 Annual Conference on “Identity, Security, Democracy: Challenges for Public Law” will be held in Hong Kong, on June 25-27, 2018. The Society invites submissions for the conference.
  2. The Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa invites submissions to participate in the second young researchers workshop on “Terrorism and Belligerency”. The application deadline is November 17, 2017.
  3. The University of Bologna School of Law is hosting a conference on “Citizenship in Europe and European Citizenship“, to be held in Bologna, on 16 October 2017.
  4. The current issue no. 3 (2017) of the journal “Dpce online” is hosting a symposium on “Comparative Perspectives on Originalism” (see “Casi e questioni”).
  5. The Stanford Program in International Legal Studies (SPILS) is accepting applications from foreign students interested in careers in teaching, research, the judiciary, public policy, or service in government or non-governmental organizations, for the position of “Teaching Fellow”. Applications are due by December 8, 2017.
  6. The Centre for International Law at the National University of Singapore is hosting its first annual International Law Year in Review, which will take place on February 8, 2018, in Singapore.
  7. The American Bar Foundation is accepting applications for the prestigious William H. Neukom Fellows Research Chair in Diversity and Law.
  8. The Maurice A. Deane School of Law at Hofstra University is currently seeking to fill up to four tenure-track positions. All subject areas will be considered, but preference will be given to candidates interested in teaching one or more required or “core” courses.
  9. The Law & Tax Department of HEC Paris invites applications for two tenure-track (or tenured) positions (at the rank of Assistant Professor, Associate or Full Professor) in Corporate Law and in International Taxation. Applications are due by 1st December 2017.

Elsewhere Online

  1. Richard Parry, Converging Events Force the Constitutional Pace, Blog of the Centre on Constitutional Change
  2. Nicolas Bagley, Ending the cost-sharing payments, Blog of the Yale Journal of Regulation
  3. Renáta Uitz, Academic Freedom in an Illiberal Democracy: From Rule of Law through Rule by Law to Rule by Men in Hungary, Verfassungsblog
  4. Leonid Bershidsky, Italy Knows How to Solve Catalonia’s Problem: A South Tyrolean-style arrangement should resolve two of the Catalan separatists’ biggest grievances, Bloomberg
  5. Gaiane Nuridzhanian, (Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine, EJIL: Talk!
  6. Perfecto Caparas, Prosecuting President Duterte, JURIST
  7. Podcast: The state of the Second Amendment, Constitution Daily
  8. Hari Osofsky & Hannah Wiseman, The pull of energy markets – and legal challenges – will blunt plans to roll back EPA carbon rules, The Conversation
  9. Albert Sánchez-Graells, Interesting report on CJEU case handling by the EU Court of Auditors, Diritti Comparati
  10. Cormac Mac Amhlaigh, Can Brexit be stopped under EU Law?, Verfassungsblog
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Published on October 16, 2017
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Developments in Philippine Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Philippine constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Dante Gatmaytan, College of Law, University of the Philippines

I. Calm before the Storm

It was, for a very long time, revered as an institution untainted with corruption. But the Court squandered its reputation when, in 1973, it ruled in favor of extra-constitutional revision of the Constitution and allowed a dictatorship to take root and flourish. Ferdinand Marcos railroaded the adoption of a new constitution by creating citizens’ assemblies which, by a show of hands, allegedly approved his constitution. This was accomplished in an atmosphere of restricted civil liberties brought on by Marcos’s imposition of martial law.

The Supreme Court avoided confrontation with Marcos by invoking the “political question” doctrine—claiming that the issues raised before it were better decided by other branches of government. The post-Marcos 1987 Constitution empowered the Court to determine whether there has been an abuse of discretion on the part of other branches of government, thereby weakening the political question doctrine.

Because it had opted to support Marcos, the Philippine Supreme Court will always be under public scrutiny.

II. The Constitution and the Court

The Constitution of the Republic of the Philippines is thirty years old. It was drafted in 1986 after Ferdinand Marcos was forced out of office by days-long massive protests, and ratified overwhelmingly the following year. The Constitution was a response to the abuses of the Marcos regime, containing several innovations that are designed to strengthen the separation of powers, as well as checks and balances.

Some of the clearest attempts to prevent a reprise of dictatorial experience were the innovations to strengthen the judiciary. This was imperative because of the Supreme Court’s role in sanctioning and sustaining the dictatorship.

Constitutionally barred from seeking a third term, Marcos called for a constitutional convention to rewrite the Constitution and adopt a parliamentary form of government, which would then allow him to rule as Prime Minister. Marcos then attempted to railroad the adoption of the Constitution, ignored procedures for the amendment or revision of the Constitution, and created “citizens’ assemblies” (which included children) to signify their consent by raising their hands. In Javellana v. Executive Secretary, a majority of the Supreme Court members ruled that the Constitution was not validly ratified, although the Court also ruled that the new Constitution was already in force through the acquiescence of the people. It was a political question, not a legal one, and not something that could be decided by the Court. The Court would later use the “political question doctrine” to sanction almost every act by Ferdinand Marcos, allowing him to pervert the rule of law.

The 1987 Constitution expanded judicial power to include the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. This was designed to prevent courts from resorting to the political question doctrine and to rule on the merits of the case.

III. Constitutional Controversies

The Supreme Court is stronger under the 1987 Constitution, reviewing acts of the Executive and Legislative branches and striking them down on the ground that there was an abuse of discretion on their part. The Court is quick to point out, however, that the Constitution did not completely extinguish the political question doctrine. In 2016, the Court faced its first major case questioning an act of President Rodrigo Duterte—the burial of former President Marcos in the Libingan ng mga Bayani (Heroes’ Cemetery).

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Published on October 15, 2017
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Colombia’s Special Criminal Tribunal: Justicia Especial para la Paz

–Sandra Botero, Universidad del Rosario

In November 2016, the Colombian government and the FARC guerrilla signed peace accords putting an end to the oldest armed conflict in the Americas.  The peace agreements proposed an ambitious institutional framework for transitional justice. This framework includes a truth commission, a commission for investigating disappearances, a dedicated investigative unit and a special ‘criminal tribunal’. Known for its Spanish acronym JEP (Justicia Especial para la Paz), the tribunal’s special “peace jurisdiction” is temporary, charged with investigating and adjudicating on crimes related to the conflict.

The 51 judges in the tribunal were selected recently through an innovative procedure including civilian input and a mix of local and international actors. When seated, the judges will be part of a highly qualified court, one that is also the most diverse high tribunal in Colombia and probably in the region. The announcement of the judges has generated a heated debate around the selection process and the tribunal’s composition. This discussion, which those opposed to the government are turning into a campaign to discredit the JEP, is politically pivotal to the implementation of the peace accords, given the importance of the tribunal to their materialization and the controversies surrounding the peace process.[1] This essay provides an overview of how this novel appointment process operated, underscoring the importance of the political decisions yet to be made about the JEP.

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Published on October 15, 2017
Author:          Filed under: Analysis