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What’s New in Public Law

Simon Drugda, Centre for Socio-Legal Studies, University of Oxford (UK)

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 US Supreme Court ruled that a court’s mistake in calculating a sentence under the advisory US Sentencing Guidelines should result in relief for the defendant, even if the original sentence was within the federal guidelines.
  2. The US Supreme Court ruled that administrative law judges are “officers of the law” under the Appointments Clause.
  3. The US Supreme Court held that the Commerce Clause of the Constitution does not prohibit states from collecting taxes from online retailers with no physical presence in the state.
  4. The US Supreme Court held that police need a warrant to get location information from cellphone tower sites.
  5. The US supreme Court held a defendant who consents to sequential trials for multiple, overlapping offenses loses double jeopardy protection.
  6. The US supreme Court held that simultaneous service by judges on two military courts does not violate the dual-officeholder ban.
  7. The Supreme Court of Philippines upheld the removal of its CJ Maria Lourdes Sereno after her May 30 motion for reconsideration.
  8. The Constitutional Court of South Africa ruled that political parties must disclose their private funding to the public.
  9. The Constitutional Court of Russia held that preventing HIV-positive families from adopting children who already live with them is unconstitutional.
  10. The Federal Constitutional Court of Germany ruled that a prohibition of repeated fixed-term employment contracts not justified by an objective reason is constitutional.

In the News

  1. High representatives of Russia, Iran and Turkey, countries acting as guarantors of the ceasefire in Syria, met with a UN special envoy to discuss the formation of the Syrian Constitutional Committee.
  2. Pope Francis and the Council Cardinal Advisers finished the first draft of what will be a new apostolic Constitution outlining the role and functions of the Roman Curia.
  3. The Chief Prosecutor of the International Criminal Court criticized the UN Security Council for not taking action against states that did not turn suspects in to the ICC.
  4. The United States will withdraw from the UN Human Rights Council.
  5. The Japanese Diet passed a legislation to lower the minimum age to vote in constitutional referendums from 20 to 18.
  6. The Parliament of Hungary adopted controversial anti-immigrant legislation and a constitutional amendment: to prohibit the settlement of foreign population in Hungary; preserve the country’s constitutional identity and Christian culture; allow municipalities to ban rough sleeping; and create a Supreme Administrate Court.
  7. The Senate of Canada passed a legislation to provide legal access to cannabis and to control and regulate its production, distribution and sale.

New Scholarship

  1. Dean R. Knight, Vigilance and Restraint in the Common Law of Judicial Review (2018) (exploring the main shapes and forms of the modulation of the depth of scrutiny in judicial review in England, Canada, Australia and New Zealand over the last fifty years)
  2. Sujit Choudry, Resisting democratic backsliding: An essay on Weimar, self-enforcing constitutions, and the Frankfurt School, 7 Global Constitutionalism 1 (2018) (examining the ability of constitutions to resist democratic backsliding based on the collapse of the Weimar Republic and historical writings of German émigré scholars after WWII)
  3. Eyal Benvenisti and Georg Nolte, Community Interests Across International Law (2018) (exploring the extent to which contemporary international law expects states to take into account the interests of others, namely third states or their citizens, in their affairs)
  4. Ellen Rock, Fault and Accountability in Public Law, in Mark Elliot, Jason Varuhas and Shona Wilson Stark (eds), The Unity of Public Law (2018) (examining whether public law is capable of operating as a comprehensive accountability regime)
  5. Jed Odermatt, Patterns of avoidance: political questions before international courts, 14 International Journal of Law in Context 2 (2018) (discussing the techniques and types of avoidance that International Courts have used to navigate through highly political or sensitive issues)
  6. Imran Ahmed, Writing Islamic Constitutions: Lessons from Pakistan, The Roundtable: The Commonwealth Journal of International Affairs (2018) (suggesting best practices for the constitutionalization of Islam and Islamic provisions)
  7. Or Bassok, The European Consensus Doctrine and the ECtHR Quest for Public Confidence, in P. Kapotas & V. Tzevelekos (eds), Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond (CUP, 2018, Forthcoming) (showing based on an empirical study of the European Court of Human Rights judgments that the ECtHR views its source of legitimacy in public confidence and that the European Consensus doctrine plays a central role in maintaining this legitimation theory)

Special Announcement: Launch of the Democratic Decay Resource (Dem-Dec)

INTRODUCTION: Today a major new online resource for research on democratic decay goes live at www.democratic-decay.org. Created by Dr Tom Gerald Daly (Melbourne Law School) and supported by a range of leading public law and policy organisations, the Democratic Decay Resource (Dem-Dec) focuses on the global challenge of the incremental deterioration of democratic rule and is primarily pitched at public lawyers, i.e. those working on constitutional, international and transnational law.
AIM OF THE RESOURCE: The resource is aimed at providing key information in one place, to frame the research area, to address conceptual confusion, and to bring scholars together in a collaborative project to drive the field forward, in a context where a lot of scholars are talking in silos, or past one another, where the literature is rapidly expanding, and research events and projects are proliferating across the world.
CONTENT: The main sections in Version 1.0 of the Resource are:
Concept Index: Contains definitions, sources and explainers of some 80 key concepts in the field (e.g. ‘autocratic legalism’, ‘authoritarian backsliding’).
Concept Map: Provides a useful basic map of the overall conceptual landscape.
Scholars: Provides a list of scholars working on the area globally, with keywords to identify their main interests, country/region focus, and link to their profile.
Bibliography: Organised under 3 headings:
  1. Themes (e.g. ‘The Current Crisis of Democracy: Recent Research’, ‘Law as a Weapon: Hollowing Out Democracy’)
  2. World Regions (Europe, North America, Latin America etc)
  3. International Organisations (e.g. EU, OAS, AU)

Events: Collates events and calls for papers related to democratic decay.

Links: Lists leading research projects, blogs, journals, and other research material.

Call for Papers and Announcements

  1. The Indonesian Constitutional Court invites applications for its 2nd International Symposium on the theme “Constitutional Court and Constitutionalism in Political Dynamics.” The deadline for submissions is July 31, 2108.
  2. The International Journal of Constitutional Law (ICON) published a special issue on Asian law. The issue also includes three reports from the forthcoming I·CONnect-Clough Center 2017 Global Review of Constitutional Law on Malaysia, Pakistan, and Thailand.
  3. The Journal of Comparative Law published a special issue on Memory Laws in European and Comparative perspective.
  4. The International Institute for Democracy and Electoral Assistance (International IDEA) published a report on “Semi-presidentialism and Inclusive Governance in Ukraine.”
  5. The Centre for Socio-Legal Studies, Faculty of Law, invites applications from scholars working in any area of socio-legal studies for a Career Development Postdoctoral Fellowship. The Fellowship is for a fixed-term of 1 year. The closing date for applications is August 8, 2018.
  6. The Centre for Socio-Legal Studies, Faculty of Law, invites applications for a Career Development Postdoctoral Fellow in Media Law and Policy. The Fellowship is for a fixed-term of 3 years, to commence as soon as possible. The closing date for applications is July 25, 2018.
  7. The Journal of the Oxford Centre for Socio-Legal Studies (JOxCSLS) invites submissions for Issue 2, 2018 and future issues. The deadline for submissions is July 30, 2018.
  8. The Italian Law Journal invites submission for Issue 2, 2018. The deadline for submissions is September 30, 2018.
  9. The Faculty of Law, Universidade Católica Portuguesa, in Porto, invites applications for a full-time position of an Assistant Professor. The deadline for applications is June 30, 2018.
  10. The Leuven Centre for Public Law and Leuven Centre for Global Governance Studies invite submissions for a conference on “Can We Still Afford Human Rights? – Critical Reflections at the 70th Anniversary of the Universal Declaration of Human Rights.” The deadline for submission of abstracts is July 15, 2018.
  11. The Chair for Public International Law and Constitutional Law at the University of Zurich invites applications for two PhD positions (with a background in Hungarian and Italian law) in Comparative Constitutional Law in a 5-year project “Popular Sovereignty vs. the Rule of Law? Defining the Limits of Direct Democracy” (LIDD). Selected candidates will work to analyze the legal frameworks of direct-democratic instruments in various European states. The deadline for applications is July 31, 2018.
  12. The Faculty of Law of Maastricht University invites applications for two lectureship positions in Public Law (constitutional law and administrative law) to teach courses at Bachelor Level. The deadline for applications is June 28, 2018.
  13. The School of Law, Trinity College Dublin, invites applications for a European Research Council-funded Post-Doctoral Research Fellow position in a project “Prisons: the Rule of Law, Accountability and Rights” (PRILA). The deadline for applications is June 27, 2018.
  14. The Yale Law School invites applications for its Eighth Annual Doctoral Scholarship Conference on November. The deadline for applications is July 12, 2018.
  15. The Kyiv-Mohyla Law and Politics Journal (KMLPJ), published by the National University of Kyiv-Mohyla Academy, Kyiv, Ukraine, is currently accepting submissions. KMLPJ is a refereed, annual, open-access academic journal publishing scholarly articles primarily in public law and also in political science.

Elsewhere Online

  1. Nino Guruli, The Federal Judiciary Revolts…not Quite and not Enough: Trump’s Travel Bans and Judicial Review, JOxCSLS
  2. Julie E Cohen, Technology, Political Economy, and the Role(s) of Law, Balkinization
  3. K Sabeel Rahman, Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?, Balkinization
  4. Wesley M Oliver, Beaten by Social Media: Certainty and Social Media Evidence, JURIST
  5. Massimo Fichera, The Italian President and the Security of the European Project, Verfassungsblog
  6. Francis Young, Parliament and Taking Back Control: A Precedent from the Maastricht Debates, UK Constitutional Law Association
  7. Mark Elliott, Consistency as a free-standing principle of administrative law?, Public Law for Everyone
  8. Zemelak Ayitenew Ayele, Reforming the Ethiopian polity: Another false dawn or a hopeful start?, ConstitutionNet
  9. Daron Tan, Adrian Coman v. Romania: A Small Victory with Wasted Potential, OxHRH
  10. Fabian Duessel, A Successful Constitutional Design: The Constitutional Court at 30, IACL-AIDC Blog (follow this link to access the full online symposium “South Korea at a Crossroads: Reflecting on Constitutional Change”)
  11. Joseph Lavelle Wilson and Douglas McDonald-Norman, Removing the Goal Posts: Manipulation of ‘Country Information’ and Public Law, AUSPUBLAW
  12. Pierre de Vos, Jacob Zuma: is it a crime to admit knowledge of corruption and not report it?, Constitutionally Speaking
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Published on June 25, 2018
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