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I·CONnect

Blog of the International Journal of Constitutional Law

Announcement–New Oxford Series in Comparative Constitutionalism–Book Proposals Welcome

Richard Albert, The University of Texas at Austin

Oxford University Press has created an exciting Series in Comparative Constitutionalism, a new home for scholarly books in public law focused on the study of constitutionalism. The new Series is co-edited by Robert Schütze and me.

Robert and I are delighted to announce that we have contracted our first three books in the Series, one each to be authored separately by Ran Hirschl (Toronto), Bui Ngoc Son (NUS), and Wojciech Sadurski (Sydney).

The new Series welcomes complete proposals as well as preliminary inquiries. A proposal should include a working title, a narrative exposition of the ideas to be developed, a detailed table of contents, a chapter-by-chapter description of the ground you will cover, and a discussion of the competing and related scholarship. A proposal should also include an anticipated manuscript delivery date, an estimated word count, and an indication of the percentage of the book that will have been published elsewhere, for instance in a legal periodical. Ultimately, a proposal should situate your claim(s) within the existing literature and explain the scholarly contribution you will make in your book. A curriculum vitae and two draft chapters from your proposed book will also assist in the consideration of your proposal. For any formal or informal inquiries please contact the Series editors by email at richard.albert [at] law.utexas.edu and robert.schuetze [at] durham.ac.uk or OUP commissioning editor Jamie Berezin at jamie.berezin [at] oup.com.

The mission of this new Series is to publish public law scholarship of the highest caliber by scholars of all academic ranks. The series is, above all, comparative in nature: we aim to publish outstanding monographs (and on exceptional occasions edited collections) that enrich our comparative understanding of constitutional doctrine, norms, practices, or systems. The series’ comparative focus on the study of constitutionalism does not foreclose single-jurisdiction studies. The series, importantly, takes a broad view of what is constitutional: instead of the classic focus on the nation state, we consciously wish to integrate local, national, regional, and global phenomena into its scope. We aspire to feature the very best doctrinal, historical, sociological, and theoretical inquiries within this domain of comparative constitutionalism.

The new Series is supported by an Advisory Board of six scholars representing the richness and diversity of our field: Denis Baranger (Paris II), Wen-Chen Chang (NTU), Roberto Gargarella (Torcuato di Tella), Vicki Jackson (Harvard), Christoph Möllers (Humboldt) and Cheryl Saunders (Melbourne).

We look forward to receiving your book proposals.

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Published on May 29, 2018
Author:          Filed under: Developments
 

What’s New in Public Law

–Mauricio Guim, S.J.D. Candidate University of Virginia School of Law.

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 Canada imposed a 50-year embargo on public access to files related to the deliberation of the judges. The 50-year restriction starts from the day the Court issues the ruling, and applies correspondence between the judges, marks up of draft rulings, and communication through law clerks.
  2. The Supreme Court of India upheld the Reserve Bank of India’s circular ending all dealings with cryptocurrencies.
  3. In a 5-4 decision the United States Supreme Court validated the use of class and collective action waivers in arbitration agreements.
  4. The Supreme Court of India approved the Cauvery Management Scheme for smooth distribution of water among the southern riparian states.
  5. The United States Supreme Court affirmed expectation of privacy in rental cars.
  6. The Supreme Court of India has asked Prime Minister Narendra Modi’s party to prove that it can muster enough lawmakers to govern the southern state of Karnataka after an indecisive vote earlier this week.
  7. The United States Supreme Court ruled unconstitutional federal prohibitions on sports betting, opening the door college sports betting.
  8. The Constitutional Court of Moldova declared unconstitutional certain provisions on transportation expenses of goods included in custom value.
  9. Following an advisory opinion of the Inter-American Court on Human Rights, the Supreme Electoral Court of Costa Rica ruled that citizens may change the name that appears in their identity card to match their gender identity.

In the News

  1. Nicolás Maduro won the presidential elections in Venezuela amid widespread disillusionment and accusations of fraud.
  2. Just two days before the presidential election, the Trump administration imposed new sanctions against Diosdado Cabello, considered the second most powerful man in Venezuela
  3. Former president of Brazil Dilma Rousseff, in a recent interview for BBC, suggested that convicted former President Luiz Inacio Lula da Silva will be a “necessary presence in the reconstruction of Brazil” and “can help stabilize the country’s democratic institutions.”
  4. Three human rights and opposition activist challenge to President of Zimbabwe Emmerson Mnamgagwa was withdrawn from the Constitutional Court’s docket. The plaintiff claim that the signatures are forged the move is a fraud.
  5. Six lawyers in Iran filed a petition challenging ban on popular telegram app.
  6. The Trump Administration has proposed to Mexico a “safe third country” agreement that would allow the United States to reject asylum applicants and instead force them to seek protection in Mexico.
  7. Burundians approved in referendum a constitutional amendment to extend presidential term limits from five to seven years.
  8. After more than two months of political deadlock, Italy’s populist parties announced that they had agreed on a common platform and would form a government based on a budget-breaking and anti-immigration agenda.
  9. At least 21 Palestinians and Israeli peace activists were arrested in Haifa during peaceful protests against Israeli occupation in Gaza.
  10. German Afd party sues Merkel amid open-door policy towards migrants.
  11. India opposition party went to the Supreme Court for the third time in three days in a bid to thwart Prime Minister Narendra Modi’s nationalist party taking control of key southern states.
  12. The United States Supreme Court was asked by the U.S. Solicitor General to review Yakama Tribe’s gas tax exemption.
  13. Jurors will return to a Silicon Valley courtroom to put a price on patented iPhone design features copied by Samsung in a legal case dating back seven years.
  14. Changes at the Democratic Republic’s of Congo Constitutional Court could clear the way for President Joseph Kabila to run for a third term.
  15. The Consultative Committee charged with drafting a new Constitution for the Philippines has proposed the creation of three supreme courts and specialized courts.
  16. A federal judge in Manhattan ruled that the President of the United State’s habit of blocking critics on Twitter is unconstitutional. According to the judge, the president’s Twitter feed is a public forum protected by the First Amendment against view-point based discrimination.
  17. A new law in Sweden now considers sex without explicit consent –verbal or physical– as rape.
  18. The Minister of Health of Chile issued a regulation allowing medical professional to refuse to perform abortion is doing so violates the religious and moral beliefs.
  19. Saudi Arabia detains activists who pushed to end ban on women driving.

New Scholarship

  1. Jeffrey Sutton, 51 Imperfect Solutions (studying the interaction of federal and state constitutions, as well as federal and state courts, in school funding, the exclusionary rule, eugenics and mandatory flag salute).
  2. Giuseppe Martinico, Richard Albert, Antonia Baraggia & Cristina Fasone (eds), The Constitution of Canada: History, Evolution, Influence and Reform, Special issue Perspectives on Federalism, Vol. 9 issue 3/2017 (special issue to commemorate the 150th anniversary of Confederation in Canada)
  3. Charles Barzun, Three Forms of Legal Pragmatism (presenting three forms of legal pragmatism, and suggesting that the unifying theme that unites them is the philosophical problem of justifying moral and legal values within a naturalistic, non-theological worldview).
  4. Norman Ho, Natural Law in Chinese Legal Thought: The Philosophical System of Wang Yang Ming (presenting Wang Yang Ming as a natural law theorist and suggesting that his philosophical contributions can contribute field of comparative legal theory).
  5. Guarav Mukherjee, The Supreme Court and Executive Law-Making: The Afterlife of failed Ordinances in Krishna Kumar Singh II (analyzing the legality and repercussions of re-promulgated ordinances by the Governor of Bihar).
  6. Son Ngog Bui, Anticolonial Constitutionalism: The Case of Ho Chi Minh (arguing that modern constitutionalism offers a powerful ideational and discursive weapon for colonized people to struggle against colonialism).
  7. Jennifer Reynolds, Book Review: Captured by Evil: The idea of Corruption in Law (reviewing Laura Underkuffler’s book on political and legal corruption).
  8. Murat Mungan, Optimal Preventive Law Enforcement and Stopping Standards (arguing that the optimal level of law enforcement must consider preventive benefits and inconvenience costs and suggesting that suspicionless stoppings can be optimal in a verity of circumstances such as poor performance in forming suspicions; the population is unresponsive to deterrence measures, and the attempt rate is high).
  9. Adam Perry, Strained Interpretations (using Bayes’ theorem to define strained interpretation and propose two reasons in defense of them)
  10. Andrew Coan, Amending the Law of Constitutional Interpretation (suggesting, as a thought experiment, a constitutional amendment originally mandating a nonoriginalist approach to constitutional interpretation).
  11. Brenner Fissel, Federalism and Constitutional Criminal Law (analyzing federalism as a justification for the Supreme Court’s refusal to place limits over the substance of criminal law).
  12. Mark Kende & Jenna Bishop, Two Decades of Obscenity and Free Speech Issues in Hong Kong, with a U.S. Comparative Perspective (analyzing freedom of speech issues in Hong Kong on the twentieth anniversary of its transfer from British to Chinese sorvereignty).
  13. Louis A. Weithorn, A Constitutional Jurisprudence of Children’s Vulnerability (analyzing the judicial construct of children’s vulnerability and proposing a typology of vulnerability based on harm-based vulnerability, influence-based vulnerability, capacity-based vulnerability, and dependency-based vulnerability. The article suggests a tenuous link between scientific knowledge and the courts’ characterization of children’s vulnerability).
  14. Josh Chafetz & David Pozen, How Constitutional Norms Breakdown (suggesting that constitutional norms are in perpetual flux and that it is more worrisome when norms are subtly revised than when they are openly flouted).
  15. Joseph Benjamin Landau, New-Majoritarian Constitutionalism (proposing a new category in addition to “majoritarianism” and “counter-majoritarianism” and arguing that “new majoritarian constitutionalism considers 1) the actual decisions of courts and juries; (2) legislative trends; (3) executive branch practices; and (4) geographic disparities within various jurisdictions.)
  16. Ronald Allen & Michael Pardo, Relative Plausibility and its Critics (arguing that relative plausibility prevails over other theories of proof).
  17. Erin Collins, Punishing Risk, (discussing usage of predictive analytics in sentencing and suggesting that actuarial risk assessment was not intended for use for sentencing decisions).
  18. Giacomo Delledonne, Giuseppe Martinico & Leonardo Pierdominici (eds), Il costituzionalismo canadese a 150 anni dalla confederazione. Riflessioni comparatistiche, Pisa University Press, Pisa, 2018 (reflecting on the Canadian Constitution in comparative perspective on the occasion of the 150th anniversary of Confederation)

Call for Papers and Announcements  

  1. The University of Alabama invites submissions for the Midwestern Law and Economics Association Annual Meeting. The papers can be on any topic of public law informed by economic thought. The submission deadline is June 25, 2018. Persons interested in applying should email Shahar Dillbary at sdillbary@law.ua.edu.
  2. “The Law” feature at Presidential Studies Quarterly is seeking submissions on topics related to executive and/or presidential interpretations of the Constitution, congressional acts, federal court cases, and international agreements.
  3. 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.
  4. 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@niu.edu) no later than June 15, 2018.
  5. The seventh edition of the Summer Program-Jean Monnet Module on “Parliamentary democracy in Europe” is receiving application. The application deadline is on June 10th. Prospective applicants should contact Illaria Del Vecchio at summersog@luiss.it.
  6. Alan Greene is launching his book “Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crises.” The event will take place on May 30 at 1 P.M. at the Bonavero Institute for Human Rights at Oxford University. More information about the book and the event can be found.
  7. The University of Texas Department of Government is organizing the Fifth Annual Graduate Conference in Public Law. The Conference will take place on October 25-26 in Austin Texas. The application deadline is August 15th. Scholars interested in participating should e-mail the organizers at utpubliclawconference@gmail.com.
  8. Verfassungs and Recht Übersee is seeking subsmissions for its special edition “Between Centralized Federalism and Regionalized Centralism: Varieties of Territorial Organization in Latin America.” The application deadline is August 1st Scholars interested in applying should contact Andreas Gutmann at andreas.gutmann@oefre.unibe.ch.
  9. The University of Bologna, University of Strasbourg, and King’s College London are organizing the Summer School for the Protection of Human Rights in Europe. The program will take place in Bertinoro on June 24 to 29. Interested persons should contact Giovanni Zaccaroni at zaccaroni@unibo.it.

Elsewhere Online

  1. Diego Bastidas Chasing, Lenin’s Moreno Referendum, The Chronicle of a Political Crisis Foretold, We The People.
  2. David Fontana, Washington is a cool city. That’s terrible news for democracy, Washington Post.
  3. Cristina Regina Bonoan & Bjorn Dressel, Dismantling a liberal constitution, one institution at a time, New Mandala.
  4. Emmet Macfarlane, The Supreme Court is being unjustifiably secretive about its internal deliberations, CBC.
  5. James W. Snyder, The United States Supreme Court Paves the Way for some Great Big Ten Prop Bets, Off Tackle Empire.
  6. Nora Shelly, Land Reform Debate Needs to Shift, Sunday Times.
  7. Philip Slayton, The Supreme Court’s failure to Connect, The Globe and the Mail.
  8. Christian Davies, Hostile Takeover, How Law and Justice Captured Poland’s Courts, Freedom House.
  9. Aziz Rana, Democracy and the Left: Rana Responds to New York Magazine’s Jonathan Chait, Dorf On Law.
  10. Joseph Fishkin, The Rule of Law, Balkanization.
  11. Angie Chan, Understanding Malaysia’s Political Earthquake, New York Times.
  12. Chris Buckey, Chinese’s Legal Maverick, Facing Political Gales, Bides His Time, New York Times.
  13. Katrinn Bennhold, Germany Acts to Tame Facebook, Learning from its Own History of Hate.
  14. Bernard Avishai, The Fight to Define the Very Essence of Israel, The Guardian.
  15. Goodman, The Opiod Crises Compels New York to look to Canada for Answers, New York Times.
  16. Adeel Hussain, Save the Constitution!,
  17. Sanford Levinson, The Supreme Court as a running dog of the capitalist empire: Reflections on the Arbitration cases, Balkanization.
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Published on May 28, 2018
Author:          Filed under: Uncategorized
 

Conference Report—Inaugural Conference of the Central and Eastern European Regional Chapter of the International Society of Public Law (ICON-S CEE)—”The Power of Public Law in the 21st Century”

Emese Pásztor, Assistant Professor of Law, ELTE, with contributions from PhD students Bazánth Barbara, Renáta Bedő, Ádám Lukonits, and János Mécs

The Central and Eastern European Regional Chapter of the International Society of Public Law (ICON-S CEE) was established on 19 April 2018 in Budapest, Hungary. Following the establishment period, the chapter will be open for scholars of any nationality based at universities in Central and Eastern Europe and scholars of nationality of one of the Central and Eastern European countries, as well as other scholars interested in CEE who would like to join as members. (If you are interested in the work of the chapter, please contact us at iconceechapter@gmail.com).

The establishment of the ICON-S CEE chapter was announced at the inaugural conference on 20 April 2018. The conference, convened by Eszter Bodnár (ELTE), David Kosař (Masaryk University), Zoltán Pozsár-Szentmiklósy (ELTE) and Pál Sonnevend (ELTE), was hosted by the Eötvös Loránd University Faculty of Law (ELTE) in Budapest.

The conference, entitled ‘The Power of Public Law in the 21st century’ provided an exceptional opportunity for the participants to dedicate an entire day solely to the noble mission of evaluating current European trends in the field of public law, and to continue all the discussions that have started at earlier events convened by ICON-S.

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Published on May 25, 2018
Author:          Filed under: Developments
 

The Oldest-Newest Separation of Powers

Yaniv RoznaiSenior Lecturer, Radzyner Law School, Interdisciplinary Center (IDC) Herzliya.

Separation of powers is a basic idea within constitutional theory. The principle of separation of powers, as famously described by Montesquieu in his The Spirit of the Laws, centered around three governmental branches: legislative power, executive power and judging power; a separation that was needed for preventing abuse of power through a power-block.[1]

In a famous article at the Harvard Law Review entitled “The New Separation of Powers”, Bruce Ackerman argues against exporting the American separation of powers system of an independently elected presidency to check and balance a popularly elected congress, but rather calls in favor of a “constrained parliamentarianism” model, in which a prime minister and his or her cabinet are authorized to remain in power as long as they can retain the support of a democratically elected chamber of deputies. Other independent institutions, including a constitutional court, take a checking function.[2] In her article “The ‘Newest’ Separation of Powers: Semipresidentialism”, Cindy Skach has claimed that actually, the constitutional model which is being imported by new democracies around the world is neither the constrained parliamentary model nor American Presidentialism model but rather semipresidentialism, which is most often associated with the French Fifth Republic.[3]

These various theories and models focus on horizontal separation of powers between different political actors and governmental branches.  In this short contribution, I want to focus on another type of separation of powers, a vertical one, between the people and the government. This separation of powers is the oldest but at the same time the newest as it is awarded recent flourishing in constitutional design.

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Published on May 23, 2018
Author:          Filed under: Analysis
 

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
Author:          Filed under: Developments
 

The Future of (International) Cultural Heritage Law (I·CON Volume 16, Issue 1: Editorial)

Lorenzo Casini, Professor of Administrative Law, IMT School for advanced studies of Lucca (Italy).*

  1. As good as it gets?

On September 27, 2016, the International Criminal Court (ICC), for the first time, punished the intentional destruction of cultural heritage as a war crime.[1] On March 24, 2017, the United Nations Security Council approved its Resolution no. 2347, on the destruction and smuggling of cultural property in case of armed conflict.[2] From March 30 to March 31, 2017, in Florence, the first ever G7 meeting of Ministers of Culture, together with representatives of the EU and of UNESCO, took place under Italy’s Presidency of the G7, and resulted in the issue of a joint declaration on “Culture as an instrument for dialogue among Peoples.”[3]

These three episodes are evidence that states and international institutions are progressively becoming more aware of the importance of cultural heritage and the urgent need to take global common actions to ensure its protection. As a matter of fact, the shocking images from Palmyra, to name but one example, and worrying data from several investigations show that terrorism identifies cultural property not only as a primary target but also as potential revenue.

Can we therefore affirm that a new era of (international) cultural heritage law has begun? If so, what kinds of effects can this new era have on international law and public law generally? And, finally, what is the role that countries with a long tradition of protecting cultural heritage can play within this context?

The ICC Al-Mahdi decision on the destruction of cultural sites in Mali has filled a gap which in the past only a few forward-looking special Tribunals—such as the one for the former Yugoslavia—were able to even deal with; the Court explicitly recognized as a war criminal, under article 8, paragraph 2, letter e) (iv) of the Rome Statute, one who had intentionally directed “attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”[4] It is a cornerstone decision, although only related to war crimes. What happens if a cultural site is destroyed in times of peace? Or if one government in charge explicitly orders such destruction, as happened in Afghanistan in 2001 when the Taliban bombed the Bamiyan Buddhas? The Al-Mahdi decision is important to protect cultural heritage internationally in case of armed conflict, but there are still other significant gaps in the criminal law regime applicable to ordinary situations. Moreover, historic property might also be seen as at risk within the domestic context, as the debate on confederate monuments in the USA demonstrates.[5]

UN Resolution No. 2347/2017, born from the joint action of the French and Italian governments, mainly refers to armed conflicts and terrorist attacks and to the increasing need to protect cultural heritage in those circumstances. However, the resolution also aims to ameliorate policies of cultural heritage protection around the world, as it lists actions that states should take, such as cataloguing, controlling circulation, and the establishment of “specialized units in central and local administration”[6] (e.g. the world-renown Italian special department of the Carabinieri Corps[7]).

The Florence Declaration of the G7 Ministers of Culture, who met for the first time in the history of the G7 organization, is even more pioneering. This document not only re-affirms that preventing terrorist attacks and the illicit trafficking of cultural property is a global priority, but it also identifies cultural heritage “in all its forms, tangible and intangible, movable and immovable” as “being an extraordinary link between [the] past, present and future of mankind.” Cultural heritage, according to the Florence Declaration, “a) contributes to the preservation of identity and memory of mankind and encourages dialogue and cultural exchanges among nations, thereby fostering tolerance, mutual understanding, recognition and respect for diversity; b) is an important tool for the growth and sustainable development of our societies, also in terms of economic prosperity; and c) is both a driver and a subject of the most advanced technologies and a context for measuring the potentials and opportunities generated by the digital era.”[8]

In addition to these three “success” stories, other recent episodes, such as the 2015 UNESCO Recommendation on the Protection and Promotion of Museums and Collections, the Unite4Heritage initiative—launched in 2016 by Italy with the aim of establishing “blue helmets” for cultural heritage—or the 2017 Council of Europe (CoE) Convention on Offences relating to Cultural Property signed in Nicosia[9] indicate that we are currently witnessing significant changes in the field.

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Published on May 17, 2018
Author:          Filed under: Editorials
 

Constitutionalizing Clear Rules for Political Transition: Entrenching the Malaysian Tsunami (I-CONnect Column)

Jaclyn L. Neo, National University of Singapore Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

A new alliance is in power. In Malaysia, the Barisan Nasional / National Front Alliance, which has been in power since the country became independent in 1957, spectacularly lost the General Elections held on 9 May 2018. Angered by persistent stories of corruption and incompetence, as well as frustrated by economic issues such as rising costs of living, the imposition of a Goods and Services Tax, stagnant salaries, lack of job opportunities, and a weakened currency, an estimated 82% of voters turned out in droves to rebuke the incumbent government.

In what has now been called the “Malaysian tsunami”, Barisan Nasional lost almost half of its seats in the federal Parliament, lost control over all but three state governments in the federation, and won a mere 36% of the popular vote. This was a radical fall from its share of the popular vote at 47.37% in the last General Elections in 2013, and from its highest at 65.5% in 1995. It won only 79 seats in the federal Parliament, out of 222. In contrast, a new coalition of four political parties led by former Prime Minister Mahathir Mohamad,[1] Pakatan Harapan (the Hope Alliance) (“PH) won 47.3% of the popular vote and control over 122 seats in the Federal Parliament. This is 10 more than the 112 seats needed to form a simple majority in Parliament.[2]

The election was a demonstration of people’s power to assert their democratic voice, despite a whole slew of attempts to try to suppress the vote. These included setting polling day in the middle of the work week; not updating the electoral register to allow voters who registered after January 2018 the right to vote; and finally, requiring overseas voters to mail back their ballots within a short campaigning period of 11 days. These attempts further angered voters, galvanising many to assert their democratic right at the ballot boxes.

However, even before the celebrations could start, the political intrigue had thickened. There was news of delay in Mahathir’s appointment by the constitutional monarch, the Yang di-Pertuan Agong, which the latter denied in a statement. When Mahathir was eventually summoned the day after the elections, the swearing in ceremony was delayed and finally took place in the late evening. There was understandably some anxiety over this as entrenched political parties sometimes refuse to give up power to make way for peaceful political transitions.[3] When the leader of BN, the former Prime Minister, cryptically claimed that no single party had won the majority of seats in parliament, there were serious concerns that BN might try to fight the vote.

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Published on May 16, 2018
Author:          Filed under: Developments
 

ICON’s Current Issue (Table of Contents)

Volume 16 Issue 1

Table of Contents

Editorial

Tributes to Norman Dorsen: Founding Editor of I.CON (1930–2017) 

Articles

Nicholas Aroney, The formation and amendment of federal constitutions in a Westminster-derived context

Rosalind Dixon and Felix Uhlmann, The Swiss Constitution and a weak-form unconstitutional amendment doctrine?

Ingo Venzke and Joana Mendes, The idea of relative authority in European and international law

Christian Bjørnskov and Stefan Voigt, The architecture of emergency constitutions

Symposium: Comparing regional human rights regimes

Başak Çalı, Mikael Rask Madsen and Frans Viljoen, Comparative regional human rights regimes: Defining a research agenda

Alexandra Huneeus and Mikael Rask Madsen, Between universalism and regional law and politics: A comparative history of the American, European, and African human rights systems

Françoise Hampson, Claudia Martin and Frans Viljoen, Inaccessible apexes: Comparing access to regional human rights courts and commissions in Europe, the Americas, and Africa

Laurence Burgorgue-Larsen, “Decompartmentalization”: The key technique for interpreting regional human rights treaties

Başak Çalı, Explaining variation in the intrusiveness of regional human rights remedies in domestic orders

Laurence R. Helfer, Sub-regional courts in Africa: Litigating the hybrid right to free movement of persons

Critical Review of Governance

Gabriel L. Negretto, Democratic constitution-making bodies: The perils of partisan conventions

Book Reflections

Dieter Grimm, Constitutional jurisprudence observed by a political scientist

Coel Kirkby, Citizen and Subject: On Historicizing Constitutional Law

Book Reviews

Angioletta Sperti. Constitutional Courts, Gay Rights and Sexual Orientation Equality (Ivana Isailovic)

Brian Ray. Engaging with Social Rights: Procedure, Participation and Democracy in South Africa’s Second Wave (Sandra Liebenberg)

James Fowkes. Building the Constitution. The Practice of Constitutional Interpretation in Post-Apartheid South Africa (Hugh Corder)

Karin Loevy. Emergencies in Public Law: The Legal Politics of Containment (Nomi Claire Lazar)

Pietro Faraguna. Ai confini della Costituzione. Principi supremi e identità costituzionale (At the Boundaries of the Constitution. Supreme Principles and Constitutional Identity) (Marco Dani)

Kemal Gözler. Elveda Anayasa (Farewell Constitution) (Cem Tecimer)

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Published on May 15, 2018
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The Declining State of the Judiciary in Poland

Piotr Mikuli, Professor and Head of Chair in Comparative Constitutional Law, Jagiellonian University in Kraków, Poland

For several months now, the Polish government has been deliberating on the Article 7 TEU sanction procedure with the EU, but the ruling party does not seem to be tackling the problem seriously, playing a tricky game with the EU commission instead, probably in hopes of tiring it out. All of the proposed amendments to the controversial pieces of legislation concerning the judiciary system are a façade, and do not in any way reverse the state of their unconstitutionality.

After demolishing the Constitutional Tribunal in 2016,[1] further measures undermining the independence of the judiciary system were taken by the ruling Law and Justice party (PiS). In June 2017, PiS proposed three bills – two amending the laws regarding the National Council of the Judiciary (the NCJ)[2] and the Act on the courts of general jurisdiction, as well as one new bill on the Supreme Court. These were immediately passed by the parliament. Massive street protests erupted in defense of judicial independence.

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Published on May 15, 2018
Author:          Filed under: Developments
 

What’s New in Public Law

–Nausica Palazzo, Ph.D. researcher in Comparative Constitutional Law (University of Trento)

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 Spanish Constitutional Tribunal suspended the law permitting the Catalan parliament to vote in Puigdemont in absentia.
  2. The Constitutional Court of Moldova ruled that the cancellation of pension payments to persons establishing their domicile abroad, who contributed to the pension system, is unconstitutional.
  3. The Brazil Supreme Court limited MPs’ jurisdiction privileges due to the high caseload.
  4. The Constitutional Court of Croatia upheld a law aimed at shielding the economy from the crisis of Croatia’s largest private company.
  5. The Israel Supreme Court President expresses concerns over a recent bill that would limit the independence of the judiciary.

In the News

  1. The Polish President set the date for a consultative referendum on prospective constitutional amendments.
  2. The Philippine Supreme Court removed one of its judges, and main opponent of Duterte’s reforms, for failure to disclose wealth.
  3. The president of Moldova announced amendments to the constitution aimed at transitioning to a presidential government.
  4. The new President of Myanmar pledges to amend the nation’s military-drafted constitution.
  5. Italy’s anti-establishment parties, 5-Star Movement and League, enter a second round of talks to jointly form a government.
  6. The Supreme Court of Equatorial Guinea upheld the dissolution of the opposition party Ciudadanos por la Innovación.

New Scholarship

  1. Anne Twomey, The Veiled Sceptre – Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press 2018) (examining exercises of the discretionary or ‘reserve’ powers of heads of state in countries including Australia, Barbados, Canada, Fiji, Grenada, India, Malaysia, New Zealand, Pakistan, Papua New Guinea, Saint Kitts and Nevis, Sri Lanka, Tuvalu, the United Kingdom and Vanuatu)
  2. Brian Christopher Jones, The rule of law in UK public law textbooks: from critique to acceptance?Public Law (forthcoming) (surveying UK public law textbooks to demonstrate how the rule of law often received curt and highly critical coverage in the 20th century, but now receives expansive and mostly accepting coverage)
  3. Aydin Atilgan, Global Constitutionalism: A Socio-Legal Perspective (Springer, 2018) (casting doubt on the use of the “global constitutionalism” paradigm as a viable alternative paradigm for international law)
  4. Chad Damro, Sieglinde Gstöhl, Simon Schunz, The European Union’s Evolving External Engagement Towards New Sectoral Diplomacies? (Routledge, 2018) (reporting the expansion of the EU’s external policy portfolio towards new areas such as competition, energy, the environment, justice and home affairs or monetary governance but also gender, science, culture or higher education)
  5. Kheinkor Lamarr, Jurisprudence of Minority Rights: The Changing Contours of Minority Rights, Proceedings of the 8th International RAIS Conference on Social Sciences (2018) (charting out the historic protection of minority rights under international human rights law).
  6. Kerry Abrams, The Rights of Marriage: Obergefell, Din, and the Future of Constitutional Family Law, 103 Cornell Law Review (2018) (examining the main and most recent constitutional family law decisions in the United States, included the overlooked Din decision)
  7. Aniceto Masferrer (Ed.), The Western Codification of Criminal Law: A Revision of the Myth of its Predominant French Influence (Springer, 2018) (offering a critical assessment of the influence of the French model on European and Latin American criminal codes)

Calls for Papers and Announcements

  1. The European University Institute welcomes applications to the Summer School “Introduction to Teaching in Higher Education,” a 4-day workshop that will introduce participants to the theory and practice of teaching in Higher Education. The summer school is held on July 4-9, 2018, in Florence, Italy. Applications are considered on a first-come, first-serve basis.
  2. The AALS Sections on International Human Rights and Law and the Social Sciences invite submissions for their program “Empirical Approaches to Human Rights Law and the Rise of ‘Indicators’” at the AALS Annual Meeting, to be held on January 2-6, 2019, in New Orleans, LA.
  3. The International Journal for the Semiotics of Law has launched a call for papers for its special issue “Hungarian Language and Law: Developing a Grammar for Social Inclusion, a Vocabulary for Political Emancipation.” The submission deadline is June 30, 2018.
  4. The American Branch of the International Law Association (ABILA) and the International Law Students Organization (ILSA) invite submissions to the International Law Weekend 2018 on “Why International Law Matters,” to be held October 18-20, 2018, in New York. More information can be found here.
  5. The new issue of the European Journal of International Law (Vol. 29, No. 1) is
  6. The Emory University School of Law in Atlanta will host a conference on “Vulnerability and the Social Reproduction of Resilient Societies” on May 29–31, 2018. Here is the link to the registration.
  7. The University of Oxford, Faculty of Law has an opening for the Professorship of Intellectual Property and Information Technology Law in association with St Peter’s College. The deadline for applications is May 30, 2018.
  8. The Faculty of Law, Economics, and Finance (FDEF) of the University of Luxembourg has an opening for one Professor of Capital Markets and Post-Trade. The deadline for the application is June 10, 2018

Elsewhere Online

  1. Arianna Vedaschi, State Secrecy in Counterterrorism: Different Judicial Standards of Review – The Abu Omar Case before Italian Courts, Verfassungsblog
  2. Sioudina Mandibaye Dominique, Reforming the Content, Rather than Context, of the Chadian Constitution: Old Wine in a New Bottle?, ConstitutionNet
  3. Nicholas Bagley, There’s No Justification for Michigan’s Discriminatory Work Requirements, Notice & Comment Blog
  4. Michael Albertus and Victor Menaldo, Why Are So Many Democracies Breaking Down?, The New York Times
  5. Rishabh Bajoria, Indian Supreme Court Waters Down Legislation Protecting Scheduled Castes and Tribes from Unlawful Discrimination, OxHRH Blog
  6. Gianfranco Baldini, Andrea Pedrazzani and Luca Pinto, How Italy experienced (yet another) electoral system and why it may soon change it again, The Constitution Unit
  7. Jack Sheldon, The UK-Welsh agreement on Brexit and devolved powers, and why it matters for the UK as a whole, Blog of the Centre on Constitutional Change
  8. Henna Bagga, Higher Education Is a Human Right, JURIST
  9. Sarah Keenan, The Blurring of Australian and Nauruan Jurisdiction, Blog of the IACL, AIDC
  10. Sofia Ranchordás, Cities as Corporations? The Privatization of Cities and the Automation of Local Law, Admin Law Blog
  11. Marcin Matczak, A Constitutional Referendum to Delegitimize the Constitution, Verfassungsblog
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Published on May 14, 2018
Author:          Filed under: Developments