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I·CONnect

Blog of the International Journal of Constitutional Law

Five Questions with Zachary Elkins

Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research. 

This edition of “Five Questions” features a short video interview with Zachary Elkins, a professor in the Department of Government at the University of Texas at Austin.

Asked to identify his favorite publication among his entire body of work thus far, Elkins chose “Are Patriots Bigots? An Inquiry into the Vices of In-Group Pride,” co-authored with Rui J.P. de Figueiredo, Jr., available for download here.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com.

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Published on March 12, 2019
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I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part III: The Constitutional Court of Korea’s Jurisprudence: Influence of International Human Rights Law

[Editor’s Note: This is the third and final entry in our symposium on the “30th Anniversary of the Constitutional Court of Korea.” The introduction to the symposium is available here, Part I is available here, and Part II is available here.]


—Yoomin Won, JSD candidate, Stanford Law School

Korea is more global than ever, which is clearly exemplified by the ongoing influence of international human rights law (IHRL) on Korean constitutional law. “Since Koreans had little experience in the western legal culture, Korea has consulted the experience of the western countries for judicial reforms,” noted Justice Ilwon Kang of the Constitutional Court of Korea. “It became a kind of tradition to consult the international and foreign law for the adjudication of cases in the Korean courts including the Constitutional Court.”[1]

This Post analyzes how the Constitutional Court has incorporated IHRL since 1988. The 15 decisions in which the Court referenced IHRL while invalidating prior Korean law are examined through the lens of each of the five six-year presidential terms of the court (1988–2018).

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Published on March 12, 2019
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What’s New in Public Law

Sandeep Suresh, Faculty Member, Jindal Global Law School (India)

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 Irish Supreme Court held that the courts have a jurisdiction to intervene where there is a significant and unremedied unlawful action by a parliamentary committee.
  2. The Hungarian Constitutional Court held that the ‘Stop Soros Legislation’ that criminalized some forms of support to illegal immigrants is not unconstitutional.
  3. The Indian Supreme Court will decide whether a criminal trial can be vitiated if the evidence of witnesses are taken in the absence of accused persons in a case which will probably expand the right to fair trial.
  4. Higher Regional Court of Frankfurt held that WhatsApp messages to close family members are defamation-free zone in which members may freely speak without fear of legal consequences.
  5. The Thai Constitutional Court dissolved the Thai Raksa Chart party for nominating Princess Ubolratana as the prime ministerial candidate.

In the News

  1. The Tennessee House of Representatives passed a law to ban abortions after the detection of fetal heartbeat which may be as early as six weeks into a pregnancy. 
  2. The Delhi High Court in India issued notice to the Central Government and Election Commission in a public interest petition that challenges the denial of voting rights to prisoners.
  3. Women leaders in Somalia urged lawmakers to pass the electoral reforms bill to ensure 30% reservation for women in the Somalian Parliament.
  4. Pakistan amended the Election Act 2017 to allow the Election Commission to constitute benches to hear complaints regarding corrupt practices during elections in a speedier manner.
  5. The German government plans to formulate a law that would strip the German citizenship of persons who represent and fight for a foreign terror militia like the ISIS.

New Scholarship

  1. Asif Hameed, The Rule of Recognition and Sources of Law in Miller, Public Law (January 2019) (providing a defence of the UK Supreme Court’s reasoning in Miller about the status of EU law under UK law, and also assessing whether Miller is a one-off case or whether other treaty-based sources of law might warrant similar protection under the UK constitution).
  2. David Kosar, Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self-Governance in Europe, 19 (7) German Law Journal (2019) (arguing that judicial self-governance is much broader phenomenon than judicial councils and why it is high time to view judicial self-governance as a much more complex network of actors and bodies with different levels of participation of judges).
  3. Domenico Giannino, Are we looking up or are we looking out? The transnational constitutionalism of the Inter-American Court of Human Rights: conventionality control and the fight against impunity, Transnational Legal Theory (2019) (arguing, via the case study of the revolutionary jurisprudence of the Inter-American Court of Human Rights, that we are looking beyond the traditional elements of constitutional analysis, which are inseparable from the idea of sovereign State).
  4. Ling Li, Political-Legal Order and the Curious Double Character of China’s Courts, Asian Journal of Law and Society (March 2019) (analysing how politics and law in China are organically integrated in the institutional architecture of courts as designed by the Chinese Communist Party).
  5. Nausica Palazzo, The Strange Pairing: Building Alliances Between Queer Activists and Conservative Groups to Recognize New Families, 25 Michigan Journal of Gender & Law (2018) (noting that the most innovative reforms in the field of family law were pushed forward by conservative groups, argues that conservative fringe groups and queer activists should build alliances to introduce alternative regimes to marriage open to new families, such as non-conjugal families).
  6. Uwe Kischel, Comparative law (Oxford University Press, 2019) (offering a critical introduction to the central tenets of comparative legal scholarship).

Call for Papers and Announcements

  1. Submissions are invited from comparative law scholars around the world for a works-in-progress roundtable, to be held at the University of Texas at Austin on May 21-22, on all subjects of comparative law. The purpose of this round table is to offer scholars the opportunity to develop their ideas as they work toward submitting a draft–either an article or a book–for publication. A total stipend of $500 is available for participants.
  2. The Xiamen Academy of International Law is inviting applications for the 2019 Summer Program to be held from July 8-26, 2019. Interested candidates must submit applications by April 30, 2019.
  3. The Democratic Decay Resource (DEM-DEC) released its ‘eighth Global Research Update on democratic decay’ (March 2019 – available here), containing new research worldwide from February and early March 2019; items suggested by DEM-DEC users; a rapidly expanding list of forthcoming research; a list of new resources added to the Links section; and – in honour of International Women’s Day on March 8 – a list of recommended reads on far right and populism by female scholars (compiled by Cas Mudde). A post introducing the Update will be published on the IACL-AIDC Blog on March 11 (Monday), followed by publication on Verfassungsblog.
  4. Friedrich Schiller University Jena is organizing an international conference on ‘100 Years of the Weimar Constitution: Constitution-Making and Its International Context’ to be held from April 4-5, 2019 in Weimar. The conference aims to undertake an international and comparative assessment of the Weimar Constitution of 1919. Both the linkages of the Weimar Constitution to contemporary developments and the international reception of the Weimar Constitution, including its long-term effects in international legal and intellectual discourses, will be analyzed. The event will be international and interdisciplinary. It will involve the perspectives of legal scholars, historians and political scientists. More information about the conference can be found online.
  5. University of Leipzig is inviting applications for the Summer School on ‘Human Rights in Theory and Practice’ to be held from September 1-7, 2019 in Leipzig. Interested applicants must note that the deadline for early bird registration is March 31, 2019.
  6. The Center for Constitutional Law at the University of Akron School of Law is inviting paper proposals for the conference on ‘The 19th Amendment at 100: From the Vote to Gender Equality’ to be held on September 20, 2019. Interested candidates must submit their proposals (short abstract of the paper and CV) to Prof. Tracy Thomas at thomast@uakron.edu by April 10, 2019.

Elsewhere Online

  1. Tom Hickey, Spectre of litigation now hovers over our parliamentarians, The Irish Times
  2. Bridgette W. Gunnels, How to force the Trump administration to follow the law on refugees, The Washington Post
  3. Armin von Bogdandy and Luke Dimitrios Spieker, Countering the Judicial Silencing of Critics: Novel Ways to Enforce European Values, Verfassungsblog
  4. Gautam Bhatia, The imperial cabinet and an acquiescent court, The Hindu
  5. Fulvia Staiano, Yeshtla v. the Netherlands: a missed opportunity to reflect on the discriminatory effects of States’ social policy choices, Strasbourg Observers
  6. Vikram David Amar and Jason Mazzone, How Much Deference Will be Given to Affirmative Action Plans Fashioned by Students, and to Affirmative Action Plans More Generally?, Verdict
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Published on March 11, 2019
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I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part II: The South Korean Constitutional Court in Comparative Perspective

[Editor’s Note: This is the second entry in our symposium on the “30th Anniversary of the Constitutional Court of Korea.” The introduction to the symposium is available here and Part I is available here.]


—Tom Ginsburg, Leo Spitz Professor of International Law and Ludwig and Hilde Wolf Research Scholar, The University of Chicago

As the Constitutional Court of South Korea turns thirty years old, we have an opportunity to reflect back on its remarkable achievements. Established as part of the founding bargain of the Sixth Republic, which restored the country’s democracy in 1987, the Constitutional Court is an example of the turn toward judicial review in the so-called “Third Wave” of democratization. Whereas prior eras of constitutional reform did not always feature powerful courts, the wave of democratization that began in the mid-1970s (peaking around 2006) has been court-centered. 

South Korea was at the vanguard of this process. In 1988, there were 37 countries that had a constitutional court or council to interpret the constitution. By 2017, that number was 96—essentially half the countries with written constitutions.[1] Of the many “third wave” courts, South Korea’s has surely been among the most successful on three dimensions: It has assumed a major role in its political system, it has not suffered backlash, and it has become a regional leader. Let me explain each point in turn.

First, the Constitutional Court has assumed a central role in its political system.  As former Justice Ilwon Kang of the Constitutional Court notes in his contribution to this symposium, few people in 1988 expected the Court to play a vigorous role in Korea’s democracy. But by now it has received and resolved tens of thousands of cases, including hundreds involving the constitutionality of statutes.  It has shown itself quite willing to strike down government actions and to help clear the channels for the country’s democratic institutions to operate.

The issues the Constitutional Court has confronted have been increasingly high profile. In its early years, the Court decided several cases related to elections and other core features of democracy, and it also made cautiously progressive decisions on issues like the National Security Act, which had been abused in the authoritarian period to limit freedoms of speech and association. In 2014, the Court was confronted with a government request to ban the Unified Progressive Party, a political group associated with North Korea. The use of party bans is a sensitive one in any democracy, as it risks substituting a court’s judgment for that of the people, who could after all reject the party in an election.  Drawing on the idea of “militant democracy,” countries like South Korea, which confronts a hostile and dangerous neighbor, have provided mechanisms to ban parties that seek to undermine the constitutional order. As in postwar Germany, the South Korean Constitution gives this role to the Constitutional Court.  In an 8-1 decision, the Court decided that the UPP had to give up its seats in the National Assembly.

The highest profile cases have been the two impeachment decisions involving sitting presidents.  In 2004, President Roh Moo-hyun ran into trouble with the conservative opposition parties in the National Assembly, which passed a motion for impeachment by the necessary 2/3 vote. Under Article 112 of the South Korean Constitution, impeachment motions must be confirmed by the Constitutional Court. The Court decided to bifurcate the issue into the question of whether there was a violation of the law, and whether any violations were severe enough to warrant removal. While the Court found that Roh had violated certain  provisions of electoral law that prevented him from campaigning for his party, it also found that these violations were not severe enough to warrant removal from office. Roh served out the remainder of his term, though he ended up committing suicide in 2009, after corruption allegations surfaced.  With this decision, the Constitutional Court confirmed its place as the very guardian of the constitutional order, taking for itself the role of final arbiter of impeachment.

This role was again evident in late 2016, when it was revealed that President Park Geun-hye had been heavily influenced by a Rasputin-like figure named Choi Soon-sil. Park’s declining popularity led to an impeachment motion from the National Assembly, and the case came to the Constitutional Court.  This time, in a careful and well-written opinion issued in March 2017, the Court found the violations severe enough to warrant Park’s removal. Within three months, a new election was held and President Moon Jae-in was elected.  These cases demonstrate the very central role the Constitutional Court has played in Korea’s vigorous democracy.

One can also compare the Constitutional Court with other institutions in South Korea. Polls show that the Court remains popular, and its decision to remove President Park was supported by nearly four out of five Koreans.  One might contrast this popularity with that of the Supreme Court, whose former Chief Justice Yang Sung-tae has just been arrested on charges of tampering with cases, including the politically sensitive issue of wartime liability of Japanese companies.  News reports also accused Yang of trying to “rein in” the Constitutional Court, as the two courts had fought in the past as to their respective jurisdictions.

Second, the Constitutional Court has suffered no great backlash.  Whereas constitutional courts in many other jurisdictions have been subject to withering criticism from politicians, there is relatively little of this in South Korea. Other courts have found their jurisdiction limited in the wake of scandals or politically sensitive decisions, but there has been no such move in these thirty years. Nor have there been attempts to pack the Court or remove judges on political grounds. Instead, the Court has reached out throughout Korean society to promote constitutional values.

Finally, the Constitutional Court has become a leader in what Professor David Law (Washington University) has called “Judicial Diplomacy.”[2] The Court has well-institutionalized mechanisms for learning about foreign jurisprudence, and has also been a leader in organizing courts in the region. Korea is the only Asian member of the Venice Commission, and Constitutional Court judges like Justice Kang are the typical representatives. The Korean Constitutional Court played the leading role in establishing the Association of Asian Constitutional Courts and Equivalent Institutions. It is a regional and global leader in constitutional justice.

These achievements become all the more impressive in a comparative a perspective. The other constitutional courts in Asia, with the exception of that of Taiwan, have not enjoyed the same sustained success. The region’s oldest democracy, Japan, is not known for vigorous judicial review.  And the other new courts of the Third Wave, particularly in Eastern Europe and Latin America, have in many countries suffered significant politicization. It is sometimes said that the judicialization of politics leads to the politicization of the judiciary, but the South Korean Constitutional Court has managed to avoid the latter fate. The story of its success surely deserves closer study.

Suggested Citation: Tom Ginsburg, I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part II: The South Korean Constitutional Court in Comparative Perspective, Int’l J. Const. L. Blog, Mar. 9, 2019, at: http://www.iconnectblog.com/2019/02/i–connect-symposium:-the-30th-anniversary-of-the-constitutional-court-of-korea—part-ii:-the-south-korean-constitutional-court-in-comparative-perspective


[1] Data from the Comparative Constitutions Project, on file with author.

[2] David S. Law, Judicial Comparativism and Judicial Diplomacy, 163 U. Pa. L. Rev. 927 (2015).

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Published on March 9, 2019
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Joint Symposium on “Towering Judges”: Sir Anthony Mason: Towering over the High Court of Australia

Gabrielle Appleby and Andrew Lynch, University of New South Wales Faculty of Law

[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The authors in this post formed part of a panel on “Towering Judges in Mature/Stable Democracies.” The introduction to the joint symposium can be found here.]

Two figures tower over the history of the High Court of Australia: Sir Owen Dixon (1929-1964) and Sir Anthony Mason (1972-1995). While our argument is that it is Mason who has risen to be the contemporary towering jurist of Australia’s High Court, they both remain obvious contenders for the appellation of a ‘Towering Justice’ in Australia, and any consideration of their respective legacies requires an appreciation of the other.

Dixon’s legacy stems from his long and distinguished tenure, in which he was famous for his articulation of a vision of a court constrained by the rigour of legalism. ‘Dixonian legalism’ affirmed the previous approach of the High Court from the decades since 1920, and held the Australian High Court in its conservative grip after Dixon’s tenure for more than half a century. Much more than a rhetorical shield against political criticism of the occasional decision in which government was thwarted, Dixon’s ‘strict and complete legalism’ was an affirmation and defence of Australian legal and political values that, unsurprisingly, embraced the positivist English legal tradition which proved both familiar and congenial to generations of Australian lawyers.[1]

Our case that it is Mason who has risen as the contemporary ‘Towering Judge’ of the Australian High Court is founded on his effective challenge to that orthodoxy – both as an individual judge and as the unquestioned leader of a remarkably talented and vibrant Court. The ‘Mason Court’ (1987-1995) reset contemporary debates about the institutional role of the Court in the Australian constitutional system, which was reflected in a distinct shift in its constitutional jurisprudential approach. Mason and his Court’s influence has endured in the face of efforts, through executive-led judicial appointments, to revert to formalism.

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Published on March 8, 2019
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I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part I: The Constitutional Court’s Role in South Korea’s Democratization

[Editor’s Note: This is the first entry in our symposium on the “30th Anniversary of the Constitutional Court of Korea.” The introduction to the symposium is available here.]


Ilwon Kang, Former Justice, Constitutional Court of Korea

“South Korea shows the world how democracy is done,” wrote a Washington Post columnist, praising the March 10, 2017, decision of the Constitutional Court of Korea to uphold the National Assembly’s vote to impeach President Park Geun-hye.[1] He continued: “The Court’s act of institutional defiance is especially remarkable when you consider that democracy in South Korea is a mere 30 years old.”

Despite its relatively recent nascency, Korean democracy is highly regarded. The Democracy Index of the Economist Intelligence Unit, a measure of democratization, ranked Korea 21st among 167 states and territories in 2018. Korea was the highest-ranking country in Asia, one notch above Japan.

Many factors have contributed to Korea’s rising democratic profile over the past 30 years. But the Constitutional Court is indisputably one of the most important enablers of Korean democracy.

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Published on March 7, 2019
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Deadline March 9—Call for Panels and Papers—2019 ICON•S Conference on “Public Law in Times of Change?”—July 1-3, 2019—Santiago de Chile

ICON·S | The International Society of Public Law is pleased to announce that its 2019 Annual Conference will be held at the Pontifical Catholic University of Chile in Santiago, on July 1-3, 2019. This will be the sixth Annual Conference of ICON·S, following the five Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017, Hong Kong 2018) which have been overwhelmingly successful, thanks to the support of our Members.

ICON·S now invites panel and paper submissions for the 2019 Annual Conference on “Public Law in Times of Change?”.

Public law is facing a myriad of new challenges – including rising popular distrust in government, increasingly closed borders, and complex economic and technological change. We are arguably living in hard times for global public law. But will these challenges result in radical changes to the field as we know it, or will public law adapt and respond in ways that reinterpret and reinvigorate its core commitments to democracy, the rule of law, and human rights in a manner that is continuous with our current practices?

Countries around the world are witnessing the reversal of longstanding democratic gains, and new authoritarian threats. Yet there are signs of resilience in the global and national public law order: popular referenda have delivered gains as well as losses for democracy; women and young people have marched in defence of public law values; and justice is being crowd-sourced and data-driven, not just undermined by foreign cyber-attacks and “fake news”.

Under the strain of technological changes and shifts in economic globalisation, the world is also confronting large-scale changes in the structure and scope of global governance and of the “administrative” state. The Welfare State is under “siege” and at both international and domestic levels the problem of economic injustice is dominating the political and socio-economic debate around the globe.

International and regional bodies are re-orienting their focus to respond to these new challenges. And commitments to constitutional and administrative reform likewise remain strong in many legal orders. They continue to engage in formal processes of constitutional review, often as part of a transition from authoritarian to democratic, and colonial to post-colonial rule: from Chile to Myanmar, Bolivia to Tuvalu, Yemen to Sudan, and from the Philippines to Gambia. Many countries are actively debating proposals for major constitutional and legal reform. Others are grappling with the legacies of past reforms and transitions, and asking whether they were sufficient to address legacies of colonialism, and the abuse of human rights, and flagrant disregard for the rule of law.

But how far can public law go in responding to these issues? Are the sources of the current democratic crisis so deeply economic and structural that they evade any meaningful public law response? Are they rooted in debates over national identity and borders, which public law can address only partially and indirectly at best? Or does public law have the resources to adapt and respond to these challenges? Can public law, for example, help shape the future direction of state and global governance, or will changes in national and international governance in fact reshape public law as we know it?

This Annual Conference will seek to address these and related issues, bringing together leading scholars, political leaders and jurists from around the world to debate these questions, and their relevance to Latin America, their own countries, and the world.

The Conference will feature a keynote address by Justice Luís Roberto Barroso of the Supreme Federal Court of Brazil, as well as three plenary sessions featuring prominent jurists, intellectuals and judges, focused on the general themes of the Conference. A provisional program can be found here. At the heart of the Conference, however, are the concurrent sessions during the three-day conference which will be devoted to the papers and panels selected through this Call.

ICON·S particularly welcomes proposals for fully-formed panels, but also accepts individual papers dealing with any aspect of the Annual Conference’s themes. Paper and panel proposals may focus on any theoretical, historical, comparative, empirical, jurisprudential, ethical, behavioral, ethnographic, philosophical or practical, policy-oriented perspective related to public law, including administrative law, constitutional law, international law, criminal law, immigration and citizenship law and human rights and may address domestic, subnational, national, regional, transnational, supranational, international and global aspects of public law.

We strongly encourage the submission of fully-formed panels. Panel proposals should include at least three papers by scholars who have agreed in advance to participate, and panel must be formed in accordance with the Society’s commitment to gender balance. Such fully-formed panel proposals should also identify one or two discussants, who may also serve as panel chair and/or paper presenter. Please kindly note that each participant can present not more than 2 papers and participate – as presenter, chair or discussant – in 4 panels maximum.

Proposals of fully formed panels may be made of – or include some – papers written and presented in Spanish. In these latter cases, paper abstracts and/or panel description must in any event be submitted in English.

Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will be scheduled for 90 minutes.

We invite potential participants to refer to the ICON·S Mission Statement when choosing a topic or approach for their papers or panels.

ICON·S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer genuinely multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the Conference’s themes. We welcome submissions from both senior and junior scholars (including doctoral students) as well as interested practitioners.

All submissions must be made through the ICON·S website by 23h59 GMT on March 9, 2019. To access the submission page, you need to be a member of ICON·S. Please register or log in with your existing ICON·S account and make sure you have paid your membership fee.

Successful applicants will be notified by April 1, 2019.

All participants will be responsible for their own travel and accommodation expenses.

We very much look forward to receiving your paper and panel proposals.

See you at ICON·S Santiago 2019!

Lorenzo Casini & Rosalind Dixon
Co-Presidents of ICON·S

Richard Albert, Gráinne de Búrca, Mariana Canales, Claudia Golden, Ran Hirschl, David Landau, Ruth Rubio Marin, Francisco Urbina, Cristián Valenzuela, Sergio Verdugo, Joseph Weiler and Fred Felix Zaumseil
Members of the ICON·S 2019 Organizing Committee

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Published on March 7, 2019
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I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Introduction: Celebrating the 30th Anniversary of the Constitutional Court of Korea

[Editor’s Note: I-CONnect is pleased to feature a special symposium on the 30th anniversary of the Constitutional Court of Korea. The Court marked this historic moment last year in 2018. We are grateful to Professor Kyu Ho Youm for convening this symposium with a diverse array of participants. We hope this symposium will inspire more research in public law with Korea as a comparator jurisdiction.]


Kyu Ho Youm, Jonathan Marshall First Amendment Chair, University of Oregon

The “Miracle on the Han River,” an expression associated with South Korea’s dazzling economic success after the Korean War, is not the only miracle in that Asian country. Another South Korean miracle—equally significant but less widely known—is political: The country stands out globally for its dramatic change to a robust democracy. South Korea’s transformation since the late 1980s to the rule of law is credited with the judicialization of various conflicts confronting Korean society—and the Constitutional Court of Korea has played an instrumental role in that judicialization, as well as in shaping a society whose Constitution is now interpreted to embrace international human rights law.

The big question for many of us with a sustained interest in the Constitutional Court of Korea is this: How has the Constitutional Court managed to rise to the institutional and non-institutional challenge of establishing itself as the indisputably authoritative voice on constitutional meaning in South Korea? This I-CONnect symposium on the 30th anniversary of the Constitutional Court aims to explore the answer to this question.

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Published on March 5, 2019
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What’s New in Public Law

Maja Sahadžić, Ph.D. Researcher, University of Antwerp

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

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

Developments in Constitutional Courts

  1. The Constitutional Court in Ukraine declared unconstitutional the article of the Criminal Code on criminal prosecution for the unlawful enrichment of officials.
  2. The Constitutional Court in Hungary ruled that a recent prohibition known as “Stop Soros” on promoting illegal migration in the Hungarian penal code is not against the constitution but its stipulations cannot be applied to activities “aimed at providing humanitarian treatment or reducing the suffering of the needy”.
  3. The Constitutional Court in Bulgaria declared that the provisions of the Judicial System Act stipulating that judges should be removed from office if they were charged with a crime committed in the exercise of their judicial functions is not unconstitutional.
  4. The Supreme Court in the United States of America ruled that the International Finance Corporation can be sued in United States courts.
  5. The Supreme Court in Israel rejected a petition to bar publication of the Attorney General’s findings in three investigations of the Israeli Prime Minister until after the elections in April.
  6. The Supreme Court in Philippines ordered the preventive suspension of two judges in two regional trial courts after learning they are distant relatives thus leaving the courts without judges to hear cases.
  7. The Supreme Court in Nigeria reserved a judgement in the case of alleged false declaration of assets involving the suspended Chief Justice until 17 May 2019.

In the News

  1. The Japanese Prime Minister vowed to proceed the relocation of a United States military base in Okinawa despite the relocation was rejected in a referendum held at the island.
  2. The Parliament in the United Kingdom voted overwhelmingly in favor of March vote on the extension of Article 50.
  3. Ukraine’s opposition leader and presidential candidate registered a bill amending the criminal code with the aim to return criminal responsibility for illicit enrichment of the nation’s officials.
  4. The Parliament in Egypt endorsed the constitutional amendments that will allow the President in office to stay in power until 2034.
  5. The Parliament in Denmark passed a “paradigm change” asylum bill that will increase restrictions on residence permits and and reduce a social welfare benefit.
  6. The European Parliament voted to approve a range of new vehicle safety standards including automatic detection of pedestrians and cyclists, and a new direct vision standard for lorries and buses to enable drivers to have a better view of other road users around their vehicles.

New Scholarship

  1. Richard Albert, Vanessa MacDonnell and Paul Daly (eds.), The Canadian Constitution in Transition (University of Toronto Press, 2019) (featuring contributions from emerging and established scholars on the future of Canadian constitutional law)
  2. Tom Gerald Daly, Unfinished Revolutions: Constitutional Pasts and Futures in Ireland and Mexico, Estudos Internacionais (2018) (examining how both Ireland’s and Mexico’s constitutional histories for the past century relate to two ‘unfinished revolutions’, in which the hopes and aspirations of the initial revolutions in each state have been only partially realised).
  3. Paolo Dardanelli, John Kincaid, Alan Fenna, André Kaiser, André Lecours, and Ajay Kumar Singh, Conceptualizing, Measuring, and Theorizing Dynamic De/Centralization in Federations, Publius (2018) (developing a conceptual, methodological, and theoretical framework for analyzing dynamic de/centralization in federations and discussing its five main properties of direction, magnitude, tempo, form, and instruments)
  4. Patricia Popelier and Samantha Bielen, How courts decide federalism disputes: legal merit, attitudinal effects, and strategic considerations in the jurisprudence of the Belgian Constitutional Court, Publius (2018) (exploring how constitutional courts impact the centralization grade of multi-tiered systems through a classification for measuring court’s position in federalism disputes and tests what determines variations across decisions within one court)
  5. Alberto López-Basaguren, Leire Escajedo San-Epifanio (eds.) Claims for Secession and Federalism, A Comparative Study with a Special Focus on Spain (2019) (explaining the most important current seccessionist claims in Western Countries, discussing the relationship between the claims for secession and federal systems, and debating the topic that dominates the political agenda in Spain)
  6. Arthur Benz, Shared Rule vs Self-Rule? Bicameralism, Power-Sharing and the ‘Joint Decision Trap’, Perspectives on Federalism (2018) (identifying conditions for the risks of ineffective compromises and fails in joint decision-making and exploring appropriate ways to adjust institutional designs of bicameralism accordingly bearing in mind that significant institutional reforms of bicameral systems are difficult to achieve)
  7. Miguel Beltrán de Felipe, Myths and Realities of Secessionisms, A Constitutional Approach to the Catalonian Crisis (2019) (exploring some of the key issues of contemporary secessionist nationalism, including its relationship with sovereignty, the right to have a referendum, and the capacity of a particular territory to amend the constitution in order to admit secession)
  8. Francesco Palermo, Beyond Second Chambers: Alternative Representation of Territorial Interests and Their Reasons, Perspectives on Federalism (2018) (exploring the reasons behind the emergence of alternative, executive-based institutions linked to ineffectiveness of the second chambers as territorial bodies)
  9. Rivka Weill, Secession and the Prevalence of Both Militant Democracy and Eternity Clauses Worldwide, Cardozo Law Review (2018) (explaining how democracies engage in a delicate game to chase and eliminate secessionist political mobilization and arguing that constitutions’ treatment of secession reveals that “We the People” is a territorial concept)

Call for Papers and Announcements

  1. The Brazilian Journal of Public Policy invites papers for the special issue “Latin American Constitutionalism: What Have We Got In Common?”. The deadline for submissions is 31 May 2019.
  2. The research groups of the Faculty of Government and European Studies at the New University and the Re-forma welcome abstract for the international conference “Judicial Ideology under Empirical Scrutiny” on 16 September 2019 in Ljubljana. The deadline for submission of abstracts in 17 May 2019.
  3. The European Yearbook of Constitutional Law invites proposals for its 2020 issue on the theme of “The City in Constitutional Law”. The deadline for proposals is 30 April 2019.
  4. The Chicago-Kent College of Law accepts entries for the 2019 Chicago-Kent College of Law/Roy C. Palmer Civil Liberties Prize. Eligible books and articles should focus on the tension between civil liberties and national security. The deadline for submissions is 1 July 2019.
  5. GNLU Journal of Law and Economics welcomes submission of papers focusing on the economic analysis of law. The deadline for submissions is 15 March 2019.
  6. The University of Potsdam invites proposals for the AHRI 2019 Conference “Human Rights and International Humanitarian Law: Challenges Ahead” on 6-7 September 2019 in Potsdam. The deadline for submissions is 8 March 2019.
  7. The Católica Research Centre for the Future of Law invites papers for the conference “The Law of Artificial Intelligence” on 19 September 2019 in Lisbon. The deadline for submissions is 17 May 2019.
  8. The Canterbury Christ Church University’s Politics and International Relations programme and the Centre for European Studies organize the Politics Summer School “Federalism, Conflict Resolution, and Good Governance” in Cantenbury on 10–24 August 2019.
  9. Comparative Constitutional Law and Administrative Law Quarterly invites submissions for its next volume. The deadline for submissions is 24 March 2019. 

Elsewhere Online

  1. Francesco Palermo, What does EU tells us about federalism, 50 Shades of Federalism
  2. Michael G Breen, The federalism debates in Nepal and Myanmar: from ethnic conflict to secession-risk management, 50 Shades of Federalism
  3. David R. Cameron, May wins vote in House after giving it power to reject no-deal Brexit and request article 50 extension if it rejects withdrawal agreement again, Yale MacMillan Center
  4. Oreste Pollicino and Giorgio Repetto, Not to be Pushed Aside: the Italian Constitutional Court and the European Court of Justice, Verfassungsblog
  5. Adeel Hussain, To Catch a Spy: India v. Pakistan at the ICJ, Verfassungsblog
  6. Natalia Brigagão, The story of Brazilian constitutional dignity – and why it matters to constitutional and human rights studies, IACL-AIDC BLOG
  7. Bilyana Petkova, Privacy as Europe’s First Amendment, IACL-AIDC BLOG
  8. Mark Elliott, The Healthcare Bill: A case study in the implications (and dangers) of legislating for Brexit, Public Law for Everyone
  9. Robert Craig, Why Royal Consent Is Required for the Proposed Article 50 Extension Bill, UK Constitutional Law Association
  10. Cliffe Dekker Hofmeyr, Hot off the bench: Constitutional Court confirms it is not necessary to hold a pre-suspension hearing, Lexology
  11. Adam Bemma, Constitutional Court to meet next week as Thai Raksa Chart faces ban over Princess Ubolratana nomination, Aljazeera

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Published on March 4, 2019
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Special Symposium on “Towering Judges”—Jointly Hosted at I-CONnect and IACL-IADC Blog—Introduction: Towering Judges in Comparative Perspective

[Editor’s Note: We are delighted to co-host a special online symposium on the concept of a “towering judge.” This symposium—hosted jointly for the first time both here at I-CONnect and at the IACL-AIDC Blog—emerges from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). We begin, today, with both blogs simultaneously publishing the Introduction to this symposium. Over the course of the next month, I-CONnect and the IACL-AIDC Blog will alternate the publication of posts on the conference theme. The symposium will conclude on April 5, 2019, with both blogs simultaneously publishing the Conclusion to this symposium. We thank the symposium organizers and our colleagues at the IACL-AIDC Blog—Erika Arban and Tom Gerald Daly—for this special collaboration.]


Iddo Porat, College of Law and Business, Tel Aviv, and Rehan Abeyratne, The Chinese University of Hong Kong

On January 25-26, we convened a conference at the Chinese University of Hong Kong, Faculty of Law, bringing together leading constitutional scholars to discuss a new topic in comparative perspective: ‘Towering Judges’. All told, we discussed 13 judges from 12 jurisdictions and two general papers. This Blog Symposium, co-hosted by IACL-AIDC and ICONnect, will give readers a snapshot of these judges and the general themes we discussed. In this introductory post, we aim to provide some background and framing to this project.

Our first challenge was to decide what to call this concept. We considered a few options: the first was Herculean judges, following Dworkin’s hypothetical judge, Hercules. Other candidates were Hero Judges, Super Judges, or Oversized Judges. We finally opted for Towering Judges, which we hope catches the essential characteristics of the phenomenon while allowing enough variance not to exclude too many important examples. At a minimum, a towering judge connotes a judge that is in some respects “taller” than other judges, and therefore individually distinguishable from them. Thus, there is something individualistic about a towering judge that we think is essential to the phenomenon. Towering also connotes not just a little bit taller, but taller in some important or substantial way. But this still leaves, intentionally, a lot open: it does not say or determine in what way the judge is taller than other judges. It also does not say whether taller is necessarily better – is he or she taller in a good or in a problematic way? Do “towering” figures also need to be liberal, anti-formalist or expansionist? Perhaps we can have towering conservative judges, or judges who are towering for holding back negative change rather than promoting positive change. Our conception also allows different degrees of “toweringness”. Towering judges could be those that completely reshape the judicial, legal and even societal landscape, but their impact need not be so far-reaching to be viewed as such. We should say also that our focus is on judges who had a towering impact on constitutional law – a focus that may not be entirely analytically justified, but pragmatically narrows the scope of the phenomenon.

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Published on March 4, 2019
Author:          Filed under: Analysis