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I·CONnect

Blog of the International Journal of Constitutional Law

Towards a More Inclusive Constitutional Discourse: Overcoming Linguistic Barriers

Maartje De Visser, Singapore Management University, Yong Pung How School of Law

[Editor’s Note: This is one of our biweekly ICONnect columns. For more information on our 2022 columnists, see here.]

The rise of English as the lingua franca is a well-known phenomenon that has affected many areas of our lives. When it comes to legal scholarship too, the current discourse is English-centered and conducted mainly through journals, monographs and edited volumes published by reputable publishing houses in English-speaking jurisdictions. Having a shared medium of communication holds promise for vastly expanding the academic comparative dialogue in depth and breadth as the pool of prospective participants is enlarged beyond those from Anglophone jurisdictions. The difficulty is realizing this vast potential. In my previous blogpost, I alluded to linguistic barriers that may affect the inclusion of narratives of the Global South in the comparative constitutional discourse. More generally, how many scholars from non-Anglophone jurisdictions (including in the Global North!) who study constitutional topics are sufficiently well-versed in English to produce the kind of academic work that meets the expectations of leading English journals and publishing houses? Even assuming the requisite linguistic ability exits, the willingness and time to may be lacking. Legal scholars are expected to contribute to the domestic constitutional discourse, critically evaluating new legislative or constitutional initiatives, facilitating judicial accountability by assessing the legal quality of domestic court decisions, or discussing the constitutional implications of major events in a country’s public or political life. Recent scholarship has put forward a stronger conception of the role of the constitutional academy as knowledge institutions or constitutional actors, playing a part in protecting constitutional democracy. In countries that have a small legal academy or those that are experiencing high levels of constitutionally salient activity, the domestic responsibilities for scholars may limit their capacity to (also) contribute to the wider comparative constitutional literature.

As such, while non-native speakers may eventually have a sustained advantage as they are able to take cognizance of materials from multiple jurisdictions, the fact remains that the mainstream English-centric field today is dominated by native speakers, whose interests in particular topics or legal systems have a formative influence on the content and direction of the field. Indeed, the existence of a lingua franca should not make us forget the continued existence and development of comparative constitutional law discourses in other languages. For the most part, those different national discourses exist and develop alongside, but not in conversation with, the English scholarship read and produced by the mainstream comparative constitutional community – and the latter is the poorer for it. 

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Published on May 18, 2022
Author:          Filed under: Analysis
 

Afghanistan’s Unwritten Constitution under the Taliban

Shamshad Pasarlay, Visiting Lecturer, The University of Chicago Law School

[Editor’s Note: This is one of our ICONnect columns. For more information on our 2022 columnists, see here.]

After taking control of Afghanistan last summer, the Taliban wasted no time in tearing down the legal and political order that had developed under the country’s 2004 Constitution. However, Afghanistan’s de facto new rulers are yet to craft an alternative for the constitutional order that they have, for all practical reasons, dethroned. The legal and constitutional founding of the Taliban authority thus remain remarkably obscure.

In fact, the Taliban have only added to the uncertainty surrounding their constitutional vision and obfuscated the matter by making inconsistent declarations about the constitutional order that they wish to install in Afghanistan. In September 2021, for instance, the Taliban indicated they would implement the 1964 Constitution of Afghanistan as an interim charter. Nonetheless, the 2004 Constitution is still available on the website of the Ministry of Justice as Afghanistan’s “enforced constitution,” and Taliban leaders have pledged to respect its rules (for more on this point, see here).  

To make matters even more confusing, the Taliban have in many places suggested that they reject the values and rules that are enshrined in both the 1964 and the 2004 constitutions. Taliban official conduct is also obviously and unapologetically inconsistent with the democratic and liberal values enshrined in both the 1964 and the 2004 basic laws. In public statements the Taliban have made no secret of their hatred and animus towards the 2004 Constitution, decrying the document as a foreign imposition.

The question, then, is what, if anything, forms the constitutional framework of the current Taliban government? I wish to explore this question in some detail here.

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Published on May 17, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


Irina Criveț, PhD Candidate in Public Law, Koç University


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Attorney General of the Republic of Portugal defended the nullity of the Constitutional Court’s judgement no.268/2022, the Metadata Act, which imposes a retroactive ban on the collection of this type of information for the purpose of a criminal investigation. The Constitutional Court will evaluate the request.
  2. A team of lawyers from the Public Interest Litigation Network and Daphne Caruana Galizia Foundation challenged Malta’s freedom of information act at the Constitutional Court. They argue that the remedies it provides are unconstitutional because they do not respect the freedom of expression and information.
  3. The Polish Constitutional Tribunal postponed the hearing in case K 8/21 concerning the compliance of EU law with the Constitution to 21 June 2022.
  4. The Constitutional Court of South Africa will decide whether the Copyright Act is unconstitutional for limiting access to books in accessible formats for persons with visual disabilities.
  5. The Constitutional Court of Colombia ruled to decriminalise assisted medical suicide for patients.
  6. The Supreme Court of Canada ruled that defendants accused of violent crimes such as homicide and sexual assault can use self-induced extreme intoxication as a defense.

In the News

  1. Professor Dainius Zalima, former President of the Constitutional Court of Lithuania, was nominated as a candidate to the UN Human Rights Committee for 2023-2026.
  2. On 5 June, the Kazakhs will participate to a national referendum on the draft amendments to the Constitution that intends to transform the country from a presidential system to a parliamentary one.
  3. Illinois Supreme Court sitting justice Justice Rita Garman will retire on 7 July.
  4. The US Senate passed legislation expanding security for supreme court justices and their immediate family members.
  5. The Albanian Parliament rejected the opposition’s resolution condemning the Srebrenica Genocide committed by Serbian troops in 1995.
  6. The Turkish Parliament passed a bill on the prevention of violence against women and health care workers.
  7. The Council of States, Switzerland’s upper house, will vote on the Parliament proposal to lower the tax for tampons and sanitary pads from 7.7% to 2.5%.

New Scholarship

  1. Ximena Benavides, Inequitable by Design: The Law and Politics of Global COVID-19 Vaccine Access – and A Way Out, forthcoming Michigan Journal of Law Reform (examines the *patent culture* that politicises healthcare access in the context of COVID-19 vaccination)
  2. Erica Howard, Headscarves and the CJEU: Protecting Fundamental Rights and Pandering to Prejudice, the CJEU Does Both, Maastricht Journal of European and Comparative Law 29, no. 2 (2022) (explores whether the CJEU offers more protection to Muslim women who want to wear headscarves at work for religious reasons)
  3. Fruzsina Gardos-Orosz, Kinga Zakarias (eds) The main lines of the jurisprudence of the Hungarian Constitutional Court 30 case studies from the 30 years of the Constitutional Court (1990 to 2020) Nomos (2022) (complies 30 landmark case studies from Hungarian jurisprudence)
  4. James E. Fleming, Constructing Basic Liberties, A Defense of Substantive Due Process, (forthcoming University of Chicago Press) (2022) (analyses the doctrine of substantive due process and argues “that substantive due process is a worthy practice that is based on the best understanding of our constitutional commitments to protecting ordered liberty and securing the status and benefits of equal citizenship for all.”)
  5. John V. Orth, “Shall Not be Construed”: Reversal of Supreme Court Decisions by Constitutional Amendment, Florida Law Review Forum 72 (2022) (examines the implications of “small changes of wording can signal large changes of thought in the US Constitution” by exploring the example found in the Eleventh, Sixteenth Amendments and the Reconstruction Amendments)

Calls for Papers and Announcements

  1. The ICON-S Committee on Community and Engagement is hosting a virtual workshop on ‘Towards an International Academic Career: Doing a Ph.D. in Public Law’ on 2 June 2022. All are welcome at no cost.
  2. The Italian Constitutional Court has opened 4 positions for legal experts in foreign law (English, French, German, Spanish and Portuguese) and 1 position for an expert in communication (English). All info here. Deadline for applications is 20 May 2022
  3. The Australian National University (ANU) accepts book proposals for the Early Career Researcher (ECR) Prize in Legal Scholarship. The DL for proposal submission is midnight (AET) 9 December 2022.
  4. The University of British Columbia, Peter A. Allard School of Law 2022-2023 Global South Visiting Scholar In-Residence Program calls for applications. The DL is 30 June 2022.
  5. The Economic and Labour Relations Review Journal issued a call for papers for the special issue December 2023 on The political economy and labour relations of Sport Mega-Events. Abstracts and symposium drafts are due by 31 July 2022.
  6. The World Trade Congress on Gender, to be held on 5-7 December at the WTO in Geneva under the theme “Gender Equality for Sustainable Trade and Recovery”, invites the submission of detailed abstract defining research questions, methodological approach and outcomes by 1 July 2022 to trade-gender@wto.org with the subject “WTCG — Call for Papers”.
  7. The Institute for European Studies, Malta, issued a call for papers for the “20 years of EU Membership” Conference. Please send an abstract (maximum 300 words) and a short bio-note listing your qualifications and professional affiliation by 23 September 2022. Papers should be between 4,000 and 6,000  words long, including references and footnotes. Paper proposals and/or any additional questions should be addressed to Marta Migliorati at marta.migliorati[at]um.edu.mt.
  8. The International Islamophobia Studies Research Association (IISRA) organises a conference on States of Islamophobia (Studies) in Istanbul, Turkey, 14-16 July 2022. Applicants are encouraged to submit fully-formed panels that can address the theme conference from an academic field or an interdisciplinary framing. Abstracts are limited to 300 words and a one paragraph (100 words). Abstracts are due by 31 May 2022.
  9. The University of Bayreuth, Chair of Food Law, organises the “Innovate Food Law” writing competition and welcomes submissions of legal essays of min. 2,500 words that will explore the topic of future food law and policy. The winner will be awarded with the prize of 700 euro. The deadline is July 15, 2022. 
  10. WJP, the Wright Center, and Bright Line Watch seek proposals for works-in-process to be presented at a workshop on 11-13 November 2022, at Dartmouth College in Hanover, NH. Papers related to the trajectory of the rule of law in the United States and its relationship with ongoing concerns about the risks to democracy in the United States and around the world are welcomed; studies of courts, prosecutors and other legal institutions, access to justice, racial disparities in the legal system, electoral integrity, media coverage of legal issues, academic integrity and trust in institutions generally. We encourage papers using multidisciplinary and novel research methods, including but not limited to computational methods, corpus linguistics, synthetic cases, and other techniques. Interested scholars should submit an abstract of up to 500 words with a CV no later than 1 June 2022, to researchconsortium@worldjusticeproject.org
  11. IE University Law School, with the support of the Erasmus+ Programme of the European Union, launched the “Lawtomation” Jean Monnet Centre of Excellence and called for participants to submit an abstract of no more than 500 words via the dedicated online form. Abstracts must be written in English. The deadline for submission is 20 June 2022.
  12. The University of Zurich will host a Conference on “Contested Equality: International and Comparative Legal Perspectives” on October 20-21, 2022. The deadline for abstract submission is 20 May 2022.

Elsewhere Online

  1. M. Jannani, The Illegality of the Khargone Demolitions, Indian Constitutional Law and Philosophy
  2. Toni Mauro, The Marble Palace Blog: At Canada’s Supreme Court, There Are No Leaks,
  3. Eliav Lieblich, Wrong to the Core the Supreme Court of Israel’s Ruling on Masafer Yatta, Verfassungsblog
  4. Lorenzo Gradoni, Is the dispute between Germany and Italy over state immunity coming to an end (Despite being back at the ICJ)?, EJIL Talk
  5. Irina Criveț, ‘Moldova, Mic-drop!’: A Long Awaited Ratification of the Istanbul Convention, IACL-AIDC Blog
  6. Oskar Sherry, LGBT Rights as administrative law? Tang Seng Kee v Attorney-General, Oxford Human Rights Hub
  7. Martino Comelli, Christian Democracy is Culpable for Europe’s Democratic Backsliding, The Loop ECPR’s Political Science Blog
  8. Asanga Welikala, Economic Crisis and Constitutional Reform in Sri Lanka, IACL-AIDC Blog
  9. Gábor Mészáros, Never Ending Exception, Verfassungsblog
  10. Cem Tecimer, De-AKPification, How to Treat AKP-Operatives in a Post-AKP Turkey, Verfassungsblog
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Published on May 16, 2022
Author:          Filed under: Developments
 

Informal Co-Optation Semi-Presidentialism: Bolsonaro´s Most Successful Autocratizing Strategy

Juliano Zaiden Benvindo, Associate Professor at the University of Brasília and CAPES-Humboldt Senior Fellow at the Max-Planck Institute for Comparative Public Law and International Law

A significant transformation is taking place in Brazil’s system of government. The country has a long history of discussion of whether its political system should maintain its presidential form or whether parliamentarianism – and, most recently, semi-presidentialism – would function as a more reasonable and effective system for governance. The debate has been stormy at all levels, but the truth is that radical changes have already been put into practice within the presidential system, to the point that it looks like a distinct one. It is no longer “coalition presidentialism”, as the literature has dubbed it,[1] but a sort of informal co-optation semi-presidentialism that exacerbates the costs of political support. Such an informal system raises the stakes of cohabitation between the President and the Speaker of the House (and, to a lesser extent, the President of the Senate) if no incentives for blatant pork-barreling (and corruption) are on the table. For Bolsonaro, it has become his most successful autocratizing strategy, though a very unstable one. According to current polling data, the odds that he may lose the presidential elections in October are high. In such circumstances, what may this legacy mean for Brazilian democracy? Is there any positive outcome of such a transformation? And what may comparative politics and democratic studies learn from such a shift in Brazil’s presidentialism?

Comparative constitutional law normally focuses on the traditional pathway to autocratization, such as court-packings, parliamentary co-optation, changes in electoral rules, extension or elimination of term limits,[2] governmental assaults on civil liberties, attacks on the media[3] and opponents, among others.[4] The abuse of the constitution for unconstitutional goals[5] is also an important feature of the so-called “third wave of autocratization,”[6] even though the metaphor of waves might be misleading.[7] Those movements are normally addressed as strategies of would-be autocrats or autocrats to hold their grip on power. Yet, a compelling debate lies in the paradoxical legacies of such transformations. For instance, Alexander Liman and Vladimir Kozlov argue that compliant political activism that helps strengthen authoritarian rule can become self-reinforcing and non-compliant once the regime is over.[8] David Landau sustains that populist constitutions may provide mechanisms that, while “[creating] appropriate incentives for political leaders”, may also “facilitate popular solutions to crises and thus play a larger role than courts in defending against the democratic threat posed by populist leaders.”[9] In all such examples, it looks like that tools that were first aimed at engendering coordination by political leaders for authoritarian goals could become tools for the citizens themselves to react “in concert against political leaders who transgress constitutional rules.”[10] What may first work as an autocratizing strategy may, paradoxically, provide some positive outcomes to make democracy again “the only game in town.”[11]

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Published on May 12, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


–Silvio Roberto Vinceti, Adjunct Lecturer, University of Modena and Reggio Emilia


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The draft of the US Supreme Court majority decision for the upcoming Dobbs case has been leaked. Albeit not final, the draft suggests the overturning of Roe v. Wade and the return of the issue of abortion to state legislatures.
  2. Describing it as “a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here” the Chief Justice of the US Supreme Court launched an official investigation into the leaking of the Dobbs draft opinion.
  3. In light of increasing lawsuits over Nazi reparations Germany took Italy before the International Court of Justice for failing to comply with the Court’s 2012 ruling
  4. Germany Federal Constitutional Court struck down several provisions of the “Bavarian Constitutional Protection Law” that provides for penetrating surveillance powers
  5. The Armenian Constitutional Court upheld the validity of the National Assembly Speaker election
  6. The Romanian Parliament appointed two judges to the Constitutional Court
  7. Romania’s Constitutional Court voided a statute abridging lawmakers’“special pension”
  8. Nine judges were appointed to the Court of Justice of the European Union
  9. The European Court of Human Rights asked the Polish government to provide its observations on 20 new applications concerning the status of judicial independence in the country
  10. The Supreme Court of Canada announced the review of the Court of appeal decision that upheld the residency requirement for elected council members of the Vuntut Gwitchin First Nation

In the News

  1. The US President described the US Supreme Court draft for the Dobbs case as a “radical decision” marking a “fundamental shift in American jurisprudence” while threatening “other basic rights”
  2. California and Ohio political leaders committed to enshrining abortion rights in state constitutions
  3. For the first time since its adoption, the European Commission triggered the rule-of-law conditionality mechanism against Hungary
  4. Two associations of French judges wrote a letter to the European Commission President questioning the EU Justice Commissioner’s impartiality in evaluating alleged threats to judicial independence in France
  5. Italy’s most representative association of judges and prosecutors deliberated a one-day strike against the ongoing reform of the judiciary
  6. In the wake of much-debated resignation of UK judges from the Court of Final Appeal a new system of judicial performance evaluation is introduced in Hong Kong
  7. Hungary’s Minister submitted a constitutional bill that would extend the state of emergency mechanism to cases of “armed conflict, war or humanitarian catastrophe in a neighboring country”
  8. President of Kazakh proposed a referendum on the decentralizing constitutional reform that would, inter alia, strip his predecessor of immunity privileges

New Scholarship

  1. Antonia Baraggia and Matteo Bonelli, Linking Money to Values: The New Rule of Law Conditionality Regulation and Its Constitutional Challenges (2022) (arguing that the debate and modifications to the rule of law conditionality regulation improved the conditionality mechanism and highlighting foreseeable legal issues)
  2. Richard Albert, Juliano Benvindo, Milton Jimenez and Cristiãn Villalonga Torrijo, Constitutional Dismemberment in Latin America, 52 Revista Derecho del Estado 97 (2022) (drawing from Latin American jurisdictions to illustrate the phenomenon of constitutional dismemberment and to explore its implications for constitutional democracy)
  3. Ramona Coman The Politics of the Rule of Law in the EU Polity Actors, Tools and Challenges (2022) (analyzing rule of law debate in the European Union and the legal tools for its enforcement)
  4. Cecilia Rizcallah and Victor Davio The Requirement that Tribunals be Established by Law: A Valuable Principle Safeguarding the Rule of Law and the Separation of Powers in a Context of Trust (2022) (discussing the established-by-law requirement as a legal principle advancing both judicial independence and accountability)
  5. Øyvind Stiansen (Non)renewable Terms and Judicial Independence in the European Court of Human Rights (2022) (evaluating the removal of reappointment opportunity for ECtHR judges and arguing that it fosters independence from nominating states)
  6. Steven Smith The Constitution, the Leviathan, and the Common Good (forthcoming 2022) (criticizing common good constitutionalism in light of classical legal tradition, the American Constitution, and contemporary constitutional theory)
  7. Raymond Byrne Judicial Conduct in Ireland: A Framework Fit for Purpose? The Bangalore Principles And The Judicial Council Act 2019 (2022) (discussing the role of Bangalore Principles and their influence on the Judicial Council Act of 2019)
  8. Brian M. Barry Judicial Impartiality in the Judicial Council Act 2019: Challenges and Opportunities (2022) (discussing the notion of judicial impartiality and its enhancement within the framework of the Irish Judicial Council)
  9. Marta Cartabia and Nicola Lupo The Constitution of Italy A Contextual Analysis (2022) (providing a comprehensive introduction to the Italian constitutional system and its main institutions)
  10. Evelyn Villarreal and Bruce M. Wilson (eds.) El agua como derecho humano: Reconocimientos y disputas en Costa Rica (2022) (discussing access to water and sanitation as a human right in the context of Costa Rica legal system)

Calls for Papers and Announcements

  1. The ICON-S CEE Chapter organizes a roundtable discussion of Andras Sajo’s new book titled “Ruling by Cheating: Governance in Illiberal Democracy.” The roundtable takes place on Tuesday, May 10th, 15:00-16:30 CET.
  2. WZB Berlin and the Martin-Luther-University Halle-Wittenberg organize a Workshop and a Conference titled “Solange 50th Anniversary Conference: Constitutionalism beyond the state and the role of domestic constitutional courts” to be held in Berlin on January 12-13, 2023 (Workshop), and on May 30-31, 2024 (Conference). The deadline for submitting abstracts is June 12, 2022.
  3. The Nevada Law Journal announced a call for papers for its symposium issue titled “Dark Necessity? The Supreme Court’s Shadow Docket.” The abstract deadline is May 16, 2022.
  4. Class Crits calls for papers for its XIII Conference on “Unlocking Inequality: Revisiting the Intersection of Race and Class” to be held on October 21-22, 2022, at the Thurgood Marshall School of Law (Houston). The submission deadline is June 30, 2022.
  5. The International Race and Rights Lab calls for abstracts for a Workshop on Race and International Relations to be held at University of Notre Dame’s Keough School of Global Affairs on March 31, 2023. The deadline is December 20, 2022.
  6. EULab calls for application to the Summer School on Labour Migration in the European Union to be held in Naples from June 27 to July 7, 2022: the deadline is May 20, 2022. Within the activities of Summer School, EULab also calls for insights for a one-day Young Scholars Workshop to be held in hybrid form: the submission deadline is May 20, 2022.
  7. The British Academy with Cara (the Council for At-Risk Academics) established a “Researchers at Risk Fellowships Programme” addressed to researchers who either are still in Ukraine, or left the country in the last five years. The next deadline for applications will be 5:00pm (BST) on Wednesday 1 June 2022. Subsequent deadlines will be Wednesday 29 June and Wednesday 20 July.
  8. On May 12-13, 2022, a Global Conference on Parliamentary Studies will be hosted in hybrid form (Budapest and online) at the Department of Constitutional and Comparative Public Law of Ludovika – University of Public Service.
  9. Following a Strasbourg Observers symposium on the publication of three books, an online panel on “Minimalism vs. Maximalism? Challenges and Future Directions in the Interpretation of the European Convention on Human Rights” will take place on June 8, 2022, at 4 pm (CET), featuring Professor Eva Brems and authors Dr Corina Heri, Dr Jens T. Theilen and Dr Natasa Mavronicola. Registration is available here.

Elsewhere Online

  1. Tom Goldstein How the leak might have happened Scotusblog
  2. Josh Blackman The Final Epicycle of Roe v. Wade Volokh
  3. Mark Movsesian Why the Dobbs Leak Is Dangerous First Things
  4. Paul Horwitz Leaks and a Look Backward Prawfsblawg
  5. Michael C. Dorf Overruling Roe is Just the Beginning Verdict
  6. Colin Harvey Next Chapter, in a Larger Story: The Assembly Election in Northern Ireland Raises Questions About its Constitutional Future Verfassungsblog
  7. John Garry The constitutional question in Ireland and Northern Ireland UKICE
  8. Thomas Perroud A Male, White and Conservative Constitutional Judge: The Composition of the French Constitutional Council After the New Appointments Verfassungsblog
  9. David Kosar and Mathieu Leloup Saying Less is Sometimes More (even in Rule-of-Law Cases): Grzęda v Poland EU Law Live
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Published on May 9, 2022
Author:          Filed under: Developments
 

What’s New in Public Law


Robert Rybski, Assistant Professor at the Faculty of Law and Administration of the University of Warsaw, Rector’s Plenipotentiary for Environment and Sustainable Development.


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. German Federal Constitutional Court backed retroactive application of the law was justified because of the outstanding importance of the matter backing the seizure of 176 million euros from the bank for its involvement in Cum-Ex trades.
  2. Germany on Friday brought a case against Italy before the International Court of Justice on the grounds that after the 2014 judgment of the Italian Constitutional Court that permitted “individual claims by victims of war crimes and crimes against humanity to be brought against sovereign states”, Italy is continuing to claim World War II compensation, thereby “failing to respect its jurisdictional immunity”.
  3. Italy’s Constitutional Court ruled that children should not automatically be given their father’s surname.
  4. In a 4-3 ruling New York’s highest court ruled that new congressional district maps violate the state constitution’s prohibition against partisan gerrymandering and should be tossed out before the 2022 election.
  5. A selection committee unanimously ruled that Worawit Kangsasitiam, president of the Constitutional Court of Thailand, will leave the post after serving nine years or reaching 75, whichever comes first.

In the News

  1. Germany summoned Turkey’s ambassador to protest a sentence of life in prison that a Turkish court handed to a prominent Turkish civil rights activist Osman Kavala.
  2. Turkey’s President Tayyip Erdogan claimed that a ruling by the European Court of Human Rights for the release of Osman Kavala no longer applied after he was jailed for life this week over anti-government protests held in 2013.
  3. Kazakhstan’s President calls for a referendum to vote on his proposed amendments to Kazakhstan’s Constitution.
  4. Peruvian President presented a constitutional reform bill that allows the formation of a Constitutional Assembly and holding a referendum to consult the public about whether the Constitutional Assembly should be tasked with preparing a new Constitution.
  5. Tunisian President Kais Saied announced that the government will form a committee to write a constitution for a “New Republic” in Tunisia.

New Scholarship

  1. Barbara Grabowska-Moroz, How was the “rule of law” dismantled in Poland and what does it mean for the EU? The decision of the Polish Constitutional Tribunal of 7 October 2021 (K 3/21) – the European game changer or a quasi-judicial bluff?,  Unión Europea y el reto del Estado de Derecho (edited by Susana Sanz Caballero), Thomson Reuters Aranzadi 2022, pp. 277-294 (analyses how the rule of law backsliding in Poland led to the decision of the Polish CT of 7 October 2021, K 3/21, and its consequences).
  2. Rita Abhavan Ngwoke, Sogunle B. Abayomi, An Appraisal of the Power of Pardon under Nigerian Law: Lessons from Other Jurisdictions, Beijing Law Review vol.13 No.2 (2022) (discusses the exercise of the presidential pardon power under the Nigerian Constitution).
  3. Nicholas Aroney, Christianity and Constitutional Law, Forthcoming, John Witte and Rafael Domingo (eds), Oxford Handbook on Christianity and Law, Oxford University Press, 2022 (explores the influence of Christianity on constitutional law throughout the history)
  4. Joshua Llyod, Fair Construction to Living Constitution: Analyzing Constitutional Interpretation Throughout United States History, Senior Honors Theses item 1183 (2022) (examines a proper method of constitutional interpretation throughout the history of the U.S. Supreme Court)
  5. Ravikiran Shukre, Establishment of Green Tribunal in India: Ideology and Nexus with the Constitution of India, Supremo Amicus vol. 28 (2022) (analyzes the performance of the Green Tribunal in India)

Calls for Papers and Announcements

  1. The University of Sydney invites applications for Julius Stone Postdoctoral Fellow in Jurisprudence from both legal theory/jurisprudence specialists and public law theorists.
  2. IUS Publicum Network Review calls for papers under the title „Effective law, multilevel government and the pandemic test”. Contributions should be no longer than 80.000 characters and can be submitted by sending an email to coordination.iuspublicum@gmail.com.  
  3. The International Association of Constitutional Law calls for papers for its roundtable in Cordoba, Argentina that will focus on “Political sentiments and moral emotions in Constitutional Law”. Interested parties should submit their CV (no longer than one page) in English, French, or Spanish, along with an abstract of their paper (no longer than 500 words) by May 30, 2022 via email to: iacl.aidc.cordoba.rt@gmail.com.
  4. IUS Publicum Network Review calls for contributions to their special issue, “Closing the circle: the role of public law implementing circular economy”. Proposals should be submitted via email to coordination.iuspublicum@gmail.com.
  5. Faculty of Law of Radboud University calls for papers for the 6th Radboud Economic Law Conference: ‘Services of General (Economic) Interest: State of Play and Current Challenges’, which will take place on 7 October 2022 at the Faculty of Law of Radboud University Nijmegen. Abstracts should be submitted by 10 July 2022.
  6. IUS Publicum Network Review invites short proposals for papers to be included in a special issue on Smart Cities: „New Challenges and new solutions: the dawn of smart cities law”. Submissions should contain a title and abstract no longer than 500 words. Proposals should be sent by October, 31st 2022 to coordination.iuspublicum@gmail.com.

Elsewhere Online

  1. Anna Wójcik, Keeping the Past and the Present Apart. The CJEU, the Rule of Law Crisis, and Decommunization, Verfassungsblog
  2. Dragoș Călin, Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism, Official Blog UNIO
  3. Radosveta Vassileva, Bulgaria’s Failed Specialized Criminal Justice Experiment, Verfassungsblog
  4. Diego Werneck Arguelhes, Public Opinion, Criminal Procedures, and Legislative Shields: How Supreme Court Judges Have Checked President Jair Bolsonaro in Brazil, Georgetown Journal of International Affairs    
  5. Alberto Alemanno, The Court of Justice of the EU goes (almost) public, Verfassungsblog
  6. Jonatan Mitchel Sisco Martinez, Unconstitutional Eradication of Presidential Term Limits: The Case of El Salvador, IACL-Blog
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Published on May 2, 2022
Author:          Filed under: Developments
 

Comparative Constitutional Law Theory Today Depends Upon Back-Translators

Bryan Dennis G. Tiojanco, Project Associate Professor, University of Tokyo, Graduate Schools for Law and Politics. Twitter: @botiojanco

[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]

‘How to Save a Constitutional Democracy’, the title of Tom Ginsburg and Aziz Huq’s 2018 book, perfectly captures the gist of comparative constitutional law theory’s present preoccupation. Since 2016 the field has churned book after book and essay after essay on this question. The focus is fueled by a sense that constitutional democracies (or at least constitutional rights) across the world are tottering, and that theory might somehow buttress them.[1] It is a worthy endeavor, but it also makes the field dependent upon back-translators.

As I said in my previous column, comparative constitutional law scholarship redescribes local legal practices in terms that are different from what practitioners would routinely use to describe them. We may call these re-descriptive terms experience-distant concepts, as opposed to the experience-near concepts which form part of every legal practitioner’s professional vocabulary.[2] A Philippine Supreme Court Justice will, for example, consider a controversy before her as involving a political question or the issue of legal standing, ripeness, mootness, etc.,[3] but she will rarely say that it presents a countermajoritarian difficulty.[4] She might agree with Alexander Bickel on this point, of course, but she would write her decision in terms of the legal doctrines, rules, and principles of Philippine law.[5]

Experience-distant concepts allow comparative constitutional law theorists to place different constitutional systems side by side so that they may each illuminate the others. Take David Landau’s essay, Courts and support structures: beyond the classic narrative, for example.[6] Landau’s thesis is that courts could and do take measures which can strengthen or even construct external support structures, viz., groups (domestic civil society groups, political parties, other courts, international NGOs, etc.) that help carry out judicial projects of social change. One such measure is the appointment of ‘Commissioners’ or a ‘Monitoring Commission’ which give civil society groups a prominent role in following up on a judgment; in Colombia and India the civil society groups constructed and strengthened by this structural remedy later succeeded in pushing for the passage of related reform legislation.[7] Here the term ‘external support structures’ and ‘measures’ are experience-distant concepts, ‘Monitoring Commission’ and Supreme Court ‘Commissioners’ are experience-near ones. To illustrate his thesis, Landau narrates how in two countries the peak court’s appointment of either Commissioners or a Monitoring Commission constructed and strengthened external support structures. The terms ‘external support structure’ and ‘measures’ allow Landau to compare the effects of analogous structural remedies on similar groups in different countries. Another way to put it is that these terms translate Colombian and Indian legalese into comparative constitutional law academese.

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Published on April 29, 2022
Author:          Filed under: Analysis
 

“Look Who’s Talking!” The Strange Story of Disownment in Taiwan’s New Experiment on Constitutional Review


Ming-Sung Kuo, Associate Professor of Law, University of Warwick & Hui-Wen Chen, Research Assistant, University of Warwick


Introduction: Opinions of the Court Disowned

Taiwan’s Constitutional Review 3.0 has seen its first 100 days since the Constitutional Court Procedure Act (CCPA) came into effect on January 4, 2022.  Although judicial time does not fly, the Taiwan Constitutional Court (TCC) has wasted no time in making the CCPA’s impact fresh and real.  As of April 28, the TCC issued four Judgements and two merits-related Orders as well as over 180 Orders on admissibility and other procedural matters under the new CCPA.  Yet, from out of the four Judgements a big story has emerged about the identity and authenticity of constitutional review: in whose name does the TCC speak as the constitution’s oracle?  It is a strange story about the TCC’s Judgments Nos. 3 and 4.

Judgment No. 3, rendered on March 25, concerned a technical procedural rule on the criminal court proceedings, whereas Judgment No. 4, delivered a week later, addressed an issue concerning indigenous rights.  Despite difference in constitutional significance, they share one character: the (nominally) authoring Justices of the opinions of the court (Reasoning) in these two Judgments issued concurring opinions.  In a word, the opinions of the court for the TCC’s Judgments Nos. 3 and 4 were disowned by their authors.  When the authoring Justices identify themselves with their concurring opinions instead of the opinions of the court, then who is talking in the Reasoning?  Does this story of disownment suggest the inauthenticity of the TCC’s Reasoning?  What does this tell us about Taiwan’s Constitutional Review 3.0? 

To make sense of the strange story of disownment in Taiwan’s new experiment on constitutional review, we suggest that at its core is a tragic exhibition of the reform suffering from the discrepancy between the law on the books and the old institutional habits that die hard.  The CCPA’s good will is the beginning of the story.      

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Published on April 28, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


Maja Sahadžić, Visiting Professor and Research Fellow (University of Antwerp) and Senior Research Fellow (Law Institute in Sarajevo)


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Supreme Court of the US ruled that Puerto Ricans do not have the same access to the welfare program.
  2. The Supreme Court of South Korea overturned the military convictions of two gay soldiers.
  3. The Supreme Court of India ruled that failure to provide an airbag system should be subject to punitive damages.
  4. The Supreme Court of India ordered twice a halt to the demolition of houses and shops in the Jahangirpuri area.
  5. The Constitutional Court of Taiwan declared unconstitutional a legal provision on Indigenous status.
  6. The Constitutional Court of Turkey ruled that compulsory religion courses violate the European Convention on Human Rights.

In the News

  1. Congresswomen in Peru issued a constitutional complaint against three judges of the Constitutional Court.
  2. The Lithuanian parliament amended the Constitution to allow direct mayoral elections.
  3. The Lithuanian parliament passed amendments to prohibit symbols associated with Russian aggression in Ukraine.
  4. The Brazilian President pardoned his political ally and escalated his feud with the Supreme Court.
  5. Seven Afghan men were flogged in the first such sentence to be handed by the Taliban-run Supreme Court.
  6. International Criminal Court’s chief prosecutor visited Bucha in Ukraine to investigate alleged war crimes in the country.
  7. The Mexican parliament blocked the president’s plan to increase state control over power generation.
  8. The Indonesian parliament passed a landmark bill on sexual violence.

New Scholarship

  1. Sujit Choudhry, Can Federalism Save India’s Constitutional Democracy? 4 Jus Cogens (questioning whether the design of the Indian constitution can be a source of constitutional resilience against the rising threat of authoritarianism and Hindu majoritarianism).
  2. Bridget A. Fahey, Data Federalism 135(4) Harward Law Review (providing an account of vast and rapidly expanding intergovernmental marketplace in individual data by arguing that constitutional doctrines can and should be adapted to police the exchange of data and that data as a form of governmental power has the potential to unsettle federalism in both function and theory).
  3. Tony George Puthucherril, Water Federalism, Tribunalization of Water Justice and Hydro-Politics: India’s Inter-State River Water Disputes Act at 65 Years 35(1) Columbia Journal of Asian Law (examining water federalism in India by questioning whether water should be transferred from the State List to the Concurrent List and whether India should persist with the tribunal system or replace it with the judicial process at the Supreme Court level).
  4. Aziz Z. Huq, The Supreme Court and the Dynamics of Democratic Backsliding 669(1) The Annals of the American Academy of Political and Social Science (exploring the role of the U.S. Supreme Court in contemporary democratic backsliding through identifying dynamics that have placed American democracy under strain).
  5. Christopher J. Williams and Gregory Shufeldt, How identity influences public attitudes towards the US federal government: lessons from the European Union 57 Acta Politica (exploring why Americans have a positive or negative effect on the US federal government by drawing on existing theoretical and empirical research regarding individual attitudes towards the European Union, examining the effect of ethnocentrism on American attitudes towards the federal government).
  6. Julian Scholtes, Abusing Constitutional Identity 22(4) German Law Journal (arguing that the anti-pluralist critiques of constitutional identity, while rightly criticizing the authoritarian appropriations of constitutional identity, ultimately go too far and draw the wrong conclusions).
  7. Gabriella Citroni, Irene Spigno, Palmina Tanzarella (eds.) The Right to Political Participation: A Study of the Judgments of the European and Inter-American Courts of Human Rights (2022) (offering a comparative analysis of how judgments from the European Court of Human Rights and the Inter-American Court of Human Rights affect political participation and electoral justice at the national level).

Calls for Papers and Announcements

  1. The IUCN World Commission on Environmental Law and the Faculty of Law of the University of Oslo host the Oslo Environmental Law Conference „The Transformative Power of Law: Addressing Global Environmental Challenges“ to be held in Oslo on 3-6 October 2022. The deadline for submitting abstracts is 30 April 2022.
  2. The Netherlands Academy for Empirical Legal Studies organizes an International Empirical Legal Studies Conference to be held in Amsterdam on 1-2 September 2022. The deadline for submitting abstracts is 1 May 2022.
  3. The Amsterdam Centre for European Studies organizes a „Conference on enabling sustainable mobility practices in Europe“ to be held in Amsterdam on 27-28 October 2022. The deadline for submitting abstracts is 1 May 2022.
  4. The Society of Legal Scholars and the Centre for Innovation and Research in Legal Education of the University of Leeds organize the hybrid international conference „Academic Integrity in the Law School: Past Experiences, Current Challenges, and Future Perspectives“ to be held in Leeds and Online on 17 June 2022. Registration in advance is required.
  5. The University of Minnesota Law School invites abstracts for the Cybersecurity Law and Policy Scholars Conference to be held in Minnesota on 23-24 September 2022. The deadline for submitting abstracts is 15 May 2022.
  6. The University of Milan calls for abstracts for the workshop „What future for environmental and climate litigation? Exploring the added value of a multidisciplinary approach from international, criminal, and private law perspectives“ to be held in Milan on 16 September 2022. The University of Milan covers travel and accommodation expenses for selected speakers. The selected speakers will also be invited to develop their abstracts into papers that will be proposed for publication in an open-access volume. For further questions please feel free to contact the organizing committee at workshop.milan@unimi.it. The deadline for applications is 16 May 2022.
  7. Católica Law School in Lisbon organizes the Católica Graduate Legal Research Conference 2022 „Multilateral cooperation and transnational legal integration“ to be held in Lisbon on 13-14 October 2022. The deadline for submitting abstracts is 31 May 2022.
  8. PluriCourts and Birmingham Law School host the workshop „The Value(s) of the European Convention on Human Rights“ to be held in Birmingham on 8-9 September 2022. The deadline for submitting abstracts is 3 June 2022.
  9. The Centre for Citizenship, Civil Society, and Rule of Law invites applicants for Ph.D. studentships to start in September 2022. The deadline for applications is 15 May 2022.

Elsewhere Online

  1. Richard Albert, 40 years on, Canada’s Charter of Rights is a beacon to the world, Ottawa Citizen
  2. Neven Andjelic, Bosnia-Herzegovina and Ukraine: On the edge of NATO and the EU, too close to prying neighbours, Centre on Constitutional Change
  3. Alex Schwartz, Estimating semantic change in UK constitutional discourse, Centre on Constitutional Change
  4. Jens Woelk, “Kyiv is under siege and so is democracy!“ Ukraine as a new EU member? The return of politics to EU integration, Eureka!
  5. Valentino Grbavac and Ivan Pepic, Streamlining a tangled web: Towards a truly democratic Bosnia and Herzegovina, Eureka!
  6. Gabriel Tan, Recent developments on declaratory relief in Public Law, UK Constitutional Law Blog
  7. Tetyana Krupiy, The Modern Bill of Rights creates barriers to challenging algorithmic decisions, UK Constitutional Law Blog
  8. Giovanni De Gregorio, Pietro Dunn, and Oreste Pollicino, Shareholder Power as a Constitutionalising Force: Elon Musk’s Bid to Buy Twitter, Verfassungsblog
  9. Witold Zontek, Can Putin Be Tried in Poland?, Verfassungsblog
  10. William Partlett, Russian Crown-Presidentialism, Verfassungsblog
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Published on April 25, 2022
Author:          Filed under: Developments
 

What’s New in Public Law


Eman Muhammad Rashwan, Ph.D. Candidate in the European Doctorate in Law & Economics (EDLE), Hamburg University, Germany; Lecturer of Public Law, Cairo University, Egypt


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, 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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. Former Burkina Faso President Blaise Compaoré was sentenced to life imprisonment in absentia after being convicted of participating in the assassination of his predecessor Thomas Sankara, who was killed along with 12 of his comrades during a coup d ‘état in 1987.
  2. Israel’s High Court of Justice ruled against a petition demanding that the police confiscate money raised for the reestablishment of two illegal outposts demolished by the authorities in the West Bank.
  3. Pakistan’s Supreme Court ruled on April 7 that Prime Minister Imran Khan’s move to dissolve Parliament was unconstitutional and ordered lawmakers to return, a decision that ended with removing him from power on Friday.
  4. On April 7, the Mexican Supreme Court of Justice resolved Constitutional procedures filed to override the Electricity Industry Law amendments published on March 9, 2021, in the Official Gazette of the Federation.
  5. Chile’s constitutional court (TC) has ruled that the presumption of environmental damage from farmed fish escapes is unconstitutional, setting a precedent for the country’s aquaculture sector.

In the News

  1. Pakistani prime minister Imran Khan was removed from office on Sunday after several weeks of political turmoil that culminated in a vote of no confidence from the country’s Parliament.
  2. The Yemeni President Abd Rabbu Mansour Hadi resigned on April 8 a Presidential Council was formed.
  3. In the first round of the French presidential election, President Emmanuel Macron took the top spot with 28% of the vote and Marine Le Pen with 23%. The turnout was the lowest percentage in 20 years, at around 74 percent. The same two candidates also received the most votes five years ago. The second round will take place on April 24.
  4. A mobile court opened on April 12 in Bana Ba Ntumba, Democratic Republic of Congo, to prosecute those allegedly responsible for numerous atrocities committed during an attack on several villages from April to May 2017 in the Dimbelenge territory of Kasai Central.
  5. On Wednesday, Representatives of Libya’s two rival governments began UN-backed talks in Egypt aimed at reaching an agreement on holding national elections

 New Scholarship

  1. Richard Albert and Richard Stacey, The Limits and Legitimacy of Referendums, Oxford University Press (2022) (exploring how referendums manage the tension between liberalism and democracy and whether this device holds promise for reconciling these two commitments)
  2. M. Di Bari, Unconstitutional Constitutional Amendments, DPCE, n. 1 (2022) (examining the Doctrine of the Basic Structure in its most recent development by the High Court of Kenya and comparing this judicial theorization with the Implicit Limitation Doctrine elaborated by the Italian Constitutional Court. This comparison focuses on the concept of constituent power in order to understand whether theories of unamendability of constitutional test – though called with different definition – commonly rest on the necessity to preserve the constitutional identity of a given legal order. The article also discusses the rationale behind the (unwritten) limits, questioning the necessity to adopt eternity clauses in constitutional texts)
  3. Jonas Monast and John Virdin, Pricing Plastics Pollution: Lessons from Three Decades of Climate Policy, Connecticut Law Review (Forthcoming, 2022) (arguing that climate change and plastic pollution share numerous similarities, and these similarities allow policymakers to benefit from the three decades of climate policy experimentation when choosing plastics pollution policy instruments. The article focuses on one key policy instrument in climate policies—pollution pricing—and identifies lessons from carbon pricing that can inform the design of plastics pollution policies)
  4. Carla Nunziato, Protecting Free Speech and Due Process Values on Dominant Social Media Platforms, Hastings L. J. (Forthcoming, 2022) (examining the desirability and constitutionality of recent federal and state legislative initiatives that seek to provide remedies for the alleged viewpoint discrimination against and censorship of conservative voices)
  5. Marco Rizzi and Tamara Tulich, All Bets on the Executive(s)! The Australian Response to COVID-19, in Joelle Grogan and Alice Donald, Routledge Handbook of Law and the COVID-19 Pandemic (Forthcoming 2022) (examining the response of the Australian Federal and State governments to the COVID-19 pandemic. Arguing that while successful in limiting the spread of the virus, the response caused significant challenges from a rule of law perspective)
  6. Frederick Schauer, Statistical Evidence and the Problem of Specification, Episteme, vol. 19 (Forthcoming, 2022) (Examining the issue of specification in statistical evidence in criminal and civil litigation, arguing it undercuts the prominent examples in a long and extensive literature and raises normative issues challenging the legal system’s traditional reluctance to base liability on the conjunction of probabilities)

Calls for Papers and Announcements

  1. The 9th Asian Constitutional Law Forum will be held in hybrid format on May 13-14, 2022. Registration is open for this event, hosted by Institutum Iurisprudentiae, Academia Sinica, Taiwan.
  2. The Asian Law and Society Association (ALSA) invites submissions to its 2022 meeting that will be held on 9-10 December 2022 at the School of Law, Vietnam National University, Hanoi, Vietnam. The theme is “Globalization, Technology, and Uncertainty.”
  3. The programme re:constitution – Exchange and Analysis on Democracy and the Rule of Law in Europe has recently published its Call for Applications for up to 10 Fellowships. The Fellowships address early-career scholars and practitioners of law and neighbouring disciplines to pursue their own topical projects about the current development and challenges to democracy and the rule of law in Europe.
  4. The “Constitutional Democracy and the Rule of Law: Mediterranean Perspectives” conference will be held on 1-2 June 2022 and hosted by the Eastern Mediterranean University, the oldest university of the Turkish Republic of Northern Cyprus. The Conference aims to bring the foremost academicians, researchers and research scholars together to share their knowledge, experiences and research results on different aspects of the Constitutional Democracy and the Rule of Law.
  5. The Network on Transnational Administrative Law calls application to its Postgraduate and Early Career Research Discussions (ECRs) for a workshop on transnational administrative law, to be held on 2nd and 3rd June in Barcelona and online. The deadline for application is May 1.
  6. The University of Lisbon School of Law, Nova School of Law, and the International Association of Legislation (IAL) announce a call for papers to the International Conference on “Multilevel legislative drafting and Legislative Impact Assessment” that will be held in a hybrid format in Lisbon on July 15 2022.
  7. The Department of Law of the University of Turin, in the framework of the UniTo Visiting Professor Program, issues a call for applications for one position in Public comparative law (a.y. 2022-2023, Second Term, 18 hours). The deadline for submission is April 22 2022 (11.00 a.m).

Elsewhere Online

  1. Paul Waldman, Now nothing will stop the Supreme Court from overturning Roe v. Wade, The Washington Post
  2. Richard Albert, 40 years on, Canada’s Charter of Rights is a beacon to the world, Ottawa Citizen
  3. Dr. Riva Kantowitz, Mariska van Beijnum, and Marie-Laure Poiré, Effective Options for Financing Local Peacebuilding, GPPAC
  4. Mariana Velasco-Rivera, Playing the Long Game: Behind Mexico’s Presidential Recall Election, IACL-AIDC BLOG
  5. Jos Meester and Guido Lanfranchi, A clash of nationalisms and the remaking of the Ethiopian State, Clingendae
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Published on April 19, 2022
Author:          Filed under: Developments