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What’s New in Public Law

Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest

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

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

Developments in Constitutional Courts

  1. The Supreme Court of India concluded the second longest oral arguments in the Court’s history–the case challenging the constitutionality of the Aadhar system of biometric information based unique identification. Critics of the Aadhar cite irregularities in the legislative procedure used to pass the law, as well as its impact on privacy rights of Indian citizens.
  2. The Supreme Court of The Gambia issued a landmark judgment declaring that laws on sedition, false publication and broadcasting are constitutional and should would remain on the statute books, much to the disappointment of the civil society groups who had challenged them as endangering freedom of the press. Further analysis available here.
  3. The Supreme Court of India ordered a floor test to ascertain whether the Bharatiya Janata Party, the party in power at the federal had the requisite numeric strength to form government in the southern state of Karnataka.
  4. The U.K. Supreme Court will hear arguments about U.K. government hacking for the first time, as a public-interest group seeks to challenge a decision permitting the government to collect large amounts of personal data and communications.
  5. The U.S. Supreme Court rejected a claim seeking clarification on whether second amendment gun rights extended to sellers of firearms.
  6. The Federal Constitutional Court of Germany heard oral arguments in a case concerning Rundfunkbeitrag (broadcasting contribution) in order to determine whether the payment is constitutional.
  7. The Supreme Court of Canada ruled that a Quebec law delaying pay equity for women in female-dominated workplaces violated Charter equality rights but declined to strike the law down. Full judgment available here.
  8. The U.S. Supreme Court held that the Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Full judgment here.
  9. The High Court of Australia delivered its judgment in a case concerning the qualifications for parliamentarians who hold dual citizenship.
  10. The U.S. Supreme Court struck down the Professional and Amateur Sports Protection Act as violating the Constitution’s anti-commandeering rule. Full judgment here.
  11. The Supreme Court of Canada signalled its intention to once again consider the nature and scope of judicial review of administrative action, specifically the question of standard of review. The decision granting leave to appeal can be found here.
  12. The Supreme Court of Canada declined to hear the appeal of an Egyptian man who is being deported by federal authorities after being accused of having links to terrorist organizations.
  13. The High Court of Australia dismissed appeal petitions by South East Asian refugees from the Supreme Court of Nauru, stating that they could find residence other parts of their homeland that were less dangerous.
  14. The Constitutional Court of Moldova examined the constitutionality of certain normative provisions on the scope of judicial review made by the supreme court of justice with respect to decisions of the superior council of magistrates.
  15. The Constitutional Court of Moldova examined the constitutionality of certain provisions of the criminal code on to the use of fake documents of particular importance

In the News

  1. Burundi voted in a referendum on 17 May to express their views on a range of constitutional amendments, the outcome of which could have an impact on issues ranging from term limits to ethnic minority protections. More coverage here.
  2. The Consultative Council of European Judges, CCJE, a Council of Europe advisory body on issues relating to the independence and competence of judges, supported Serbian judges in their criticisms of proposed changes to the constitution, the head of the Serbian judges’ association.
  3. Maria Lourdes Sereno, the Chief Justice of the Philippines Supreme Court and a vocal critic of Prime Minister Duterte’s actions, was ousted from her office by her fellow judges, in a move being termed as a threat to democracy by protesters.
  4. Pakistan’s parliament passed the Transgender Persons (Protection of Rights) Act, a landmark law that seeks to expand fundamental rights for the country’s transgender community and will allow transgender people to be officially recognized as their preferred gender for the first time. Full text of law available here.
  5. In Somalia, representatives from the Federal Member States, civil society and private citizens took part in the launch of the National Constitutional Convention as part of its constitutional review process.
  6. The Supreme Court of Canada placed a 50-year embargo on public access to files related to the deliberations of the judges, from the time they rule on a case, which has ensured that documents disclosing their secret inner workings will not be revealed during their lifetime.
  7. In Zimbabwe, Opposition leader Elton Mangoma petitioned the Constitutional Court seeking an order to nullify sections of the Electoral Act as well as align others with the Constitution ahead of the setting of dates for the 2018 harmonized elections expected later this year.

New Scholarship

  1. Cass R. Sunstein & Adrian Vermeule, The Morality of Administrative Law (2018) (offering a unifying theory of judge-made administrative law. They argue that Lon Fuller’s influential theory of internal legal morality––specifically, his eight ways that “legal rules may misfire,” such as retroactivity, vagueness, or unpredictability––explains many of the judicial anxieties that have helped shape modern administrative law doctrine)
  2. Richard Albert & Bertil Oder, The Forms of Unamendability, in An Unamendable Constitution? Unamendability in Constitutional States (Richard Albert & Bertil Oder, eds., forthcoming Springer 2018) (introducing this edited volume and illustrating the many purposes served by unamendability in constitutional design)
  3. Jared A. Goldstein, Unfit for the Constitution: Nativism and the Constitution, From The Founding Fathers To Donald Trump (2018) (tracing nativism as expressed in legislative and executive actions from the founding fathers of the U.S. to Donald Trump)
  4. Grégoire Webber, et. al.(eds.), Legislated Rights. Securing Human Rights through Legislation (2018) (exploring how and why legislatures, being strategically placed within a system of positive law, can help realise human rights through modes of protection that courts cannot provide by way of judicial review)
  5. Thorbjørn Jagland (Secretary General of the Council of Europe) released his report titled State of Democracy, Human Rights and The Rule Of Law. Role of institutions, Threats to institutions (2018) (assessing the key building blocks of democratic security across Council of Europe member states: independent judiciaries, freedom of expression, freedom of assembly and association, the functioning of democratic institutions and inclusive societies)
  6. Maurice Adams, Anne Meuwese, and Ernst Hirsch Ballin (eds.), Constitutionalism and the Rule of Law. Bridging Idealism and Realism (2018) (presenting a set of essays to test the hypothesis that the best normative theories, including those regarding the role of constitutions, constitutionalism and the rule of law, conceive of the ideal and the real as mutually regulating)
  7. Niels Petersen, Proportionality and Judicial Activism. Fundamental Rights Adjudication in Canada, Germany and South Africa (2018) (arguing that endogenous institutional constraints bind judges in the 3 jurisdictions under study from engaging in judicial activism)
  8. Helen Carr, Brendan Edgeworth, Caroline Hunter, Law and the Precarious Home. Socio Legal Perspectives on the Home in Insecure Times (2018) (exploring the emergent and internationally widespread phenomenon of precariousness by applying innovative work done by socio-legal scholars in other fields such as labour law and welfare law, to the home)
  9. Gabriel Negretto and Javier Couso, Constitution-Building Processes in Latin America (2018) (describing a number of successful strategies in relation to rights and government structure which has worked in countries in Latin America in the 1978-2012 period)
  10. Bui Ngoc Son, Constitutional Mobilization (2018) (introducing the concept of constitutional mobilization, theorizing about it, and offering an original, empirical case-study)
  11. Donal Coffey, Drafting the Irish Constitution, 1935–1937. Transnational Influences in Interwar Europe (2018) (situating the drafting of the Irish Constitution within broader transnational constitutional currents)

Call for Papers and Announcements

  1. The Serbian Political Science Association (SPSA) calls for papers for its Annual International Conference on Constitutionalism and Constitutional Design in Democratic Recession on 22-23 September 2018 in Belgrade.
  2. The Peking University School of Transnational Law invites inquiries from experienced professors for visits of between five and ten weeks during AY 2018-19 to teach certain topic. Queries to be addressed to christiandpangilinan@gmail.com or cpangilinan@stl.pku.edu.cn.
  3. The Minerva Center for the Rule of Law under Extreme Condition, the Aptowitzer Center for Risk, Liability and Insurance and the Center for Cyber, Law and Policy invites participants for a Symposium on ‘The Legal Challenges of Terror’, on 7 June 2018; details can be found here.
  4. The Centre For Arab & Islamic Studies & Centre For Law, Arts & Humanities at the Australian National University invites abstracts for its conference titled “After the Rule: Interpreting Law in Comparative and Cross-Cultural Perspective” to be held on 21 September 2018.
  5. The Australian Network for Japanese Law and the Asia Pacific Legal Institute of Australia, in collaboration with Bond University announced a call for papers for the 2018 Asian Law and Society Association conference.
  6. Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis announce the Second Annual Equality Law Scholars’ Forum to be held in November 2018. Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 1, 2018 to Tristin Green, USF School of Law at tgreen4@usfca.edu.
  7. Northern Illinois University College of Law will host a Junior Scholars Works-in-Progress conference at Loyola University School of Law on October 5, 2018. Interested scholars are expected to submit a working title and abstract of 200-300 words to LeAnn Baie (lbaie[at]niu.edu) no later than June 15, 2018.
  8. Católica Global School of Law presents the Graduate Legal Research Conference 2018, “The Future of Health Law” and abstracts are due by June 11, 2018.
  9. The University of Wollongong School of Law‘s Legal Intersections Research Centre invites the submission of abstracts for the 37th Annual Conference of the Australia and New Zealand Law and History Society (ANZLHS), to be held December 12–15, 2018 in Wollongong, Australia. Abstracts of papers or panel proposals (of three to four papers) related to the theme of “Inclusion, Exclusion and Democracy”, which should be no more than 250 words must be submitted by July 6, 2018.
  10. The AALS Sections on International Human Rights and Law and the Social Sciences invite papers for their program “Empirical Approaches to Human Rights Law and the Rise of ‘Indicators’” at the AALS Annual Meeting (January 2-6, 2019, in New Orleans, LA). Concept notes of 5-15 double-spaced pages with a summary of key ideas are due June 1, 2018.

Elsewhere Online

  1. Tarunabh Khaitan, A Sinking, Slow and Steady, The Indian Express, 18 May 2018.
  2. Gaurav Mukherjee, Symposium: Crisis at the Supreme Court of India? A Moment of Self-Reckoning for the Supreme Court of India? Reflections on the Judges’ Press Conference, International Association of Constitutional Law Blog, 17 May 2018.
  3. Tomasz Tadeusz Koncewicz, The Białowieża case. A Tragedy in Six Acts, Verfassungsblog, 17 May 2018.
  4. Michael Kirby, Minimum Core Obligations and the Right to Health: A Legal Analysis, James G. Stewart Blog, 17 May 2018.
  5. Francis Young, “Packing” the Lords: Some Legal Reflections, UK Constitutional Law Association Blog, 16 May 2018.
  6. Jongcheol Kim, Presidential Proposal for Constitutional Revision in South Korea: Unlikely to be Passed but Significant Step Forward, Constitution Net, 16 May 2018.
  7. Patrick Utz, Federal reforms in Austria: is now the time to overcome gridlock?, The Constitution Unit, 15 May 2018.
  8. Ronald Collins, Ask the Author: “We the Corporations: How American Businesses Won Their Civil Rights”, SCOTUS Blog, 15 May 2018.
  9. Chiara Graziani, UK-EU Intelligence Information Sharing after Brexit, DCU Brexit Unit, 15 May 2018.
  10. Alon Harel, The Israeli Override Clause and the Future of Israeli Democracy, Verfassungsblog, 14 May 2018.
  11. Zoltán Fleck, Judges under Attack in Hungary, Verfassungsblog, 14 May 2018.
  12. Dennis Altman, A radical thought: could constitutional monarchies be important aids to democracy?, The Conversation, 13 May 2018.
  13. Shubhankar Dam, Why the Supreme Court has only itself to blame for the recent unsavoury episodes, Economic Times, 13 May 2018.
  14. Freedom House, Nations in Transit Report 2018, Freedom House, 2018.
  15. Martha Nussbaum, Minimum Core Obligations: Toward A Deeper Philosophical Inquiry, James G. Stewart Blog, 11 May 2018.
  16. Tom Gerald Daly, Report: An African Judicial Network: Building Community, Delivering Justice, International Association of Constitutional Law Blog, 6 May 2018.
  17. Amia Srinivasan, More Equal Than Others (reviewing Jeremy Waldron’s ‘One Another’s Equals: The Basis of Human Equality’), The New York Review of Books, 19 April 2018.
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Published on May 21, 2018
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