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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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Supreme Court of Canada ruled Hydro-Québec has the right to construct an electric-power transmission line along an existing corridor despite the objections of landowners.
  2. The First US Circuit Court of Appeals in Boston upheld a ruling clearing Harvard University of discrimination against Asian American applicants.
  3. The U.K. Supreme Court will hear a significant LGBTQ rights case, which could force the country to adopt the internationally recognised non-gendered ‘X’ option.
  4. A leader of the Narc Kenya Party, Martha Karua moved to the High Court challenging the decision by Judicial Service Commission to dismiss her complaint against Justice Lucy Gitari.
  5. The High Court in Nairobi ruled against a ban on public gatherings in a petition filed by the Law Society of Kenya (LSK) under the certificate of urgency, citing the ban as a contravention of the freedom to associate enshrined in the Constitution of Kenya 2010.
  6. The Supreme Court of the United States Supreme Court ordered election officials in Pennsylvania to keep the late-arriving ballots separate from other ballots, and not to include them, for now, in announced vote totals.

In the News

  1. The Government of Hungary proposed a constitutional amendment requiring children to be raised with a Christian interpretation of gender roles, as Prime Minister Viktor Orban’s ruling nationalists turn to anti-LGBT rhetoric to shore up support.
  2. The Federal High Court in Abuja granted permission to a petitioner to pursue a suit against the President, over his refusal to appoint all the 33 nominees recommended to him by the National Judicial Council as judges of the High Court of the Federal Capital Territory, Abuja.
  3. Peru’s Congress voted to impeach and oust President Martin Vizcarra over allegations he took kickbacks from developers while serving as a regional governor in 2014.
  4. Turkey’s ruling Justice and Development Party proposed changes to electoral law to suit better the presidential system which critical changes that range from determining a new electoral threshold and limiting deputies’ ability to shift parties.
  5. Guyana’s Attorney General and Minister of Legal Affairs, Hon. Mohabir Anil Nandlall outlined that the Government intended to keep its manifesto promise on constitutional reform and commence the process with discussions in the National Assembly. 
  6. The High Court of Justice of Israel heard arguments made by petitioners against the coalition agreement between Prime Minister Benjamin Netanyahu and Defense Minister Benny Gantz and the changes made to the country’s quasi-constitutional Basic Laws in order to implement the deal.

New Scholarship

  1. Ryan Doerfler and Samuel Moyn, Democratizing the Supreme Court, California Law Review, forthcoming 2020 (arguing that the debate over reform of the Supreme Court of the United States should abandon its framing around notions of legitimacy, and distinguishing between personnel reforms like court-packing and disempowering reforms like jurisdiction stripping and a supermajority requirement for judicial review).
  2. Uvin Dissanayake, Technocratic, Populism and the Pandemic State: Performative Governance in Post-COVID Sri Lanka, Centre for Policy Alternatives Discussion Paper, 2020 (examining how the Sri Lankan Government has been able to employ a counterintuitive and underexamined type of populist rhetoric, that of technocratic populism).
  3. Alan Greene, Emergency Powers in a Time of Pandemic (2020) (examining how human rights, democracy and the rule of law can be protected during a pandemic and how emergency powers can best be ended once it wanes).
  4. Jackie Dugard, Bruce Porter, Daniela Ikawa and Lilian Chenwi (eds.), Research Handbook on Economic, Social and Cultural Rights as Human Right (2020) (combining practitioner and academic perspectives to provide a comprehensive, cutting edge analysis of economic, social and cultural rights (ESCR), as well as the connection between ESCR and other rights).
  5. Farah Peterson, Expounding the Constitution 130(1) Yale Law Journal (2020) (arguing that during the framing and ratification of the US Constitution, many of the Founders thought the Constitution would be interpreted according to the rules applicable to public legislation).
  6. Michael J. Klarman, The Degradation of American Democracy — And the Court – Foreword 134(1) Harvard Law Review 1 (2020) (discussing ways in which the US Supreme Court has contributed to the degradation of US democracy, offering some causes for the phenomenon, and possible ways forward). A podcast episode discussing this work can be found here.
  7. Tara Leigh Grove, Which Textualism? 134 Harvard Law Review 265 (2020) (arguing that the battle between textualism and purposivism has caused scholars to overlook a key and consequential division within textualism).

Calls for Papers and Announcements

  1. The Konrad Adenauer Stiftung and the Korea University School of Law host a roundtable on Covid-19 and Constitution with experts drawn from Korea and Germany.
  2. The British Association of Comparative Law (BACL) invited submissions for its blog on the theme “The regulation of fake news and its enforcement”.
  3. The Petrie-Flom Center at Harvard announced an online event on Enforcing Constitutional Commitments to Health and Social Equality in Kenya: A Conversation with Justice Mumbi Ngugi.
  4. The Indian Journal of Constitutional Law announced a call for papers for Vol. X of the Journal, to be published in 2021.
  5. King’s College, London hosts an online event on Ecocide in a Pandemic: Laws of Exposure and Encounter in the Anthropocene.
  6. The Institute for International Law and the Humanities together with the Australian Human Rights Institute host Beijing Platform for Action at 25: Progress, Retreat and the Future of Women’s Rights.
  7. The Institute of Advanced Legal Studies announced the Call for Proposals from potential Academic Directors of the 2022 WG Hart Workshop. The deadline for proposals is January 31, 2021.
  8. The Laureate Program in Comparative Constitutional Law (Melbourne Law School) and the Melbourne School of Government host the IACL-AIDC Global Roundtable on ‘Democracy 2020: Assessing Constitutional Decay, Breakdown, and Renewal Worldwide’.
  9. Penn State Dickinson Law invites applications from entry-level and lateral candidates for tenure-track and tenured faculty positions expected to begin July 1, 2021.
  10. Emory University School of Law sought applications for the John Lewis Chair for Civil Rights and Social Justice, beginning in the 2021-2022 academic year.

Elsewhere Online

  1. Rosalind Dixon, Towards a viable constitutional transformation in Chile?, EmolTV
  2. Ciarán Burke, An Irish Tale of Judicial Misconduct Or: How Not to go for Dinner after a Round of Golf, Verfassungsblog
  3. Katharine Jackson, What Makes An Administrative Agency “Democratic”?, LPE Blog
  4. Kim Lane Scheppele, What Happens Next? The Trials, the Transition and the Tinderbox, Verfassungsblog
  5. Cristina Guevara, ¡Basta Ya! How pandemic-related corruption calls for a new social contract in Panama, Atlantic Council
  6. Viktor Z. Kazai, Power Grab in Times of Emergency, Verfassungsblog
  7. Linda Greenhouse, The Supreme Court Is Now 6-3. What Does That Mean?, New York Times
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Published on November 16, 2020
Author:          Filed under: Developments
 

One Response

  1. Briefly: on one page.
    We are in a benevolent, predatory, form of martial law from DC/United States* incorporated governance, in some form, since 1861. It’s Name is the Lieber Code from Lincoln’s Executive order 100 in color of law. We had a Constitutional Republican form of government from 1819 to 1860 or 1861. From 1776 to 1819 it was changing from an overthrown Monarchy. Most of the “people from 1776 to 1819 the people at large” were not convinced for a long time. There really in an active conspiracy, the industrial/military/judicial/legislative/executive/banker/ BAR/royalist/communist/muslim/Georgia Guide stone complex.

    This does not involve the true Constitutional Republican form of government on each of the several states. As long as there are still “people” the body, mind, spirit as juxtaposed to “person” the ALL CAP NAME corporate fiction. All power is inherent in the people.

    Each state is an autonomous Nation, not a subdivision of the US inc., each with its own Constitution. All power is inherent in the people. The number of people is not specified and a majority is not required as we are not a Democracy. The several states of the union are the creator party to “The United States of America’s Constitution.” The “people at large” are beneficiaries. The “people at large” are the creator party to the State’s Constitutions.

    The STATE OF OREGON’s incorporated governance is color of law. Operated by the Salem oligarchy aka Kate Brown et al…That is a subdivision of the DC/United States* as originally incorporated during Lincoln’s era.

    I think each STATE OF THE OTHER 49 is about the same. A Little more carrot or a little more stick.

    To remove the Lieber Code/martial law the method is clear and written down by the de facto. The Lieber code of Lincoln’s EO 100 is nullified by a civilian court on the land. So says SCOTUS Ex parte Milligan. There was no, none, zero civilian courts on the land of Oregon. Until ours. I was told there is one on Texas, one in Philadelphia and one on Georgia. I have been unable to prove this. I do know there is no Article III court that will claim original jurisdiction. They have acquiesced to “we must do it ourselves.”

    The Army Heritage Center 717 245 3972/3949 verified the Lieber Code was updated and still in effect in 2015. No known changes since then. The JAG , Judge Advocate General, attorney knew exactly what I was talking about.

    A method of returning Oregon to a Constitutional Republican form of government was/is: We assembled our 1st amendment Oregon Statewide Jural Assembly 3 years ago. We notified the DOJ, USMS, FBI, 36 Sheriffs, 30 Senators, A.G, governor, SoS lawfully and none rebutted our claim, they all acquiesced and defaulted.

    We formed Article I Section 1 of Oregon’s Constitution and informed all the same ones. We formed our civilian court of record and informed all the same ones. We notified all the same ones; that thru Ex parte Milligan’s authority we nullified Lieber Code/martial law. Not one rebuttal.

    We informed the Oregon National Guard/Oregon Organized Militia’s JAG and they are not happy and have talked back and hung up. We are awaiting an appointment with their Commanding General Michael Stencel.

    We are forming a 45 member Grand jury pool and trial jury pool of Oregonians non-US citizens, to bring forth true bills against the evil doers on Oregon. Then implement Article III Amendment VII.

    Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was a landmark decision of the US Supreme Court that ruled the application of military tribunals to citizens when civilian courts are still operating is unconstitutional. In this particular case, the Court was unwilling to give President Abraham Lincoln’s administration the power of military commission jurisdiction, part of the administration’s controversial plan to deal with Union dissenters during the American Civil War. Justice David Davis, who delivered the majority opinion, stated that “martial rule can never exist when the courts are open” and confined martial law to areas of “military operations, where war really prevails”, and when it was a necessity to provide a substitute for a civil authority that had been overthrown. Chief Justice Salmon P. Chase and three associate justices filed a separate opinion concurring with the majority in the judgment, but asserted that Congress had the power to authorize a military commission, although it had not done so in Milligan’s case.
    The landmark case stemmed from a trial by a military commission of Lambdin P. Milligan (for whom the case is named), Stephen Horsey, William A. Bowles, and Andrew Humphreys that convened at Indianapolis on October 21, 1864. The charges against the men included, among others, conspiracy against the U.S. government, offering aid and comfort to the Confederates, and inciting rebellion. On December 10, 1864, Milligan, Bowles, and Horsey were found guilty on all charges and sentenced to hang. Humphreys was found guilty and sentenced to hard labor for the remainder of the war. (The sentence for Humphreys was later modified, allowing his release; President Andrew Johnson commuted the sentences for Milligan, Bowles, and Horsey to life imprisonment.) On May 10, 1865, Milligan’s legal counsel filed a petition in the Circuit Court of the United States for the District of Indiana at Indianapolis for a writ of habeas corpus, which called for a justification of Milligan’s arrest. A similar petition was filed on behalf of Bowles and Horsey. The two judges who reviewed Milligan’s petition disagreed about the issue of whether the U.S. Constitution prohibited civilians from being tried by a military commission and passed the case to the U.S. Supreme Court. The case was argued before the Court on March 5 and March 13, 1866; its decision was handed down on April 3, 1866.
    Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863. Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General’s Office, 1863, Washington 1898: Government Printing Office.
    Article I Section 1 of Oregon’s Constitution Natural rights inherent in people.We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper. —
    *See https://www.oregonlaws.org/ors/79.0307 (8) The United States is located in the District of Columbia.

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