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I·CONnect

Blog of the International Journal of Constitutional Law

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 of Turkey rejected an application claiming a violation of freedom of expression over the country’s internet censorship.
  2. The Constitutional Court of Ukraine upheld a law that equates communism to Nazism.
  3. The Constitutional Court of Croatia decided that the use of the Serbian language and Cyrillic script for official purposes in the Croatian town of Vukovar should be extended.
  4. The Constitutional Court of Slovenia annulled legislation that allows police to use systems for automatic license plate recognition, finding it contravenes the constitutional right to protection of personal data.
  5. The Supreme Court of India rejected a plea that Muslim women should be allowed to enter mosques.
  6. The Constitutional Court of Guatemala blocked a controversial immigration agreement with the United States about the designation of Guatemala as “a safe third country.”
  7. The Constitutional Court of Saarland in Germany ruled that speed camera readings that cannot be independently verified violate the right to a fair trial.
  8. The Constitutional Court of Mauritania confirmed the country’s next president, dismissing an appeal by opposition candidates over alleged voting irregularities.
  9. The Supreme Court of Canada allowed the government of Nova Scotia to keep “conquered people” documents secret.
  10. The Federal Constitutional Court of Germany dismissed a complaint by the Argentinian government on the grounds that German courts had refrained from a referral to the Federal Constitutional Court in proceedings concerning the Argentine Debt Crisis.

In the News

  1. The European Parliament elected the president of the European Commission.
  2. The President of Egypt appointed the Head of the Supreme Constitutional Court of Egypt.
  3. The Parliament of Tunisia failed to elect the remaining members of the Constitutional Court.
  4. The President of Chile signed into law a bill to remove the statute of limitations on sex crimes involving children amid a sex abuse crisis that involved the Catholic Church.
  5. The Parliament passed the national system of science and technology bill, which imposes criminal charges against foreign researchers found guilty of violating visa regulations.
  6. The United States legislature approved a bill to limit the President’s authority to go to war against Iran.
  7. The Parliament of Malaysia considers lowering the voting age to 18.
  8. Several environmental groups marched to the Malaysian Parliament, demanding stronger forestry laws.
  9. Finland rejected calls to end corporate sponsorships to cover part of the costs of the rotating presidency of the Council of the European Union.
  10. A former Peruvian president was arrested in the United States.

New Scholarship

  1. Patricia Popelier, Procedural Rationality Review after Animal Defenders International: A Constructively Critical Approach, 15 European Constitutional Law Review (2019) (examining whether the European Court of Human Rights should establish a wide margin of appreciation, whether the quality of the lawmaking procedure justifies an outcome that is highly dubious, and what procedural rationality review involves)
  2. Giacomo Delledonne and Giuseppe Martinico (eds.), The Canadian Contribution to a Comparative Law of Secession Legacies of the Quebec Secession Reference (2019) (reflecting on the importance of the Quebec Secession Reference as a turning point in Canadian law of secession)
  3. Andrew Harding and Khin Khin Oo (eds.), Constitutionalism and Legal Change in Myanmar (2019) (attempting to gauge the extent and potential for the entrenchment of constitutionalism in Myanmar in a rapidly changing environment)
  4. Robert A. Flatow, Reimagining Congress’s Treaty-Implementing Authority: An Originalist Case for the Unexplored Middle Ground, Perspectives on Federalism (2019) (addressing prerogative to implement non-self-executing treaties of the US Congress)
  5. Giuseppe Martinico, Preserving Constitutional Democracy from Populism – The Case of Secession Referendums (2019) (exploring the relationship between constitutional democracy and referendum in contexts characterized by new waves of populism)
  6. Marianna Muravyeva (ed.), The Foundations of Russian Law (forthcoming 2020) (elucidating the main concepts underlying Russian law and explaining how does it operate in practice by using original legal sources and case law)
  7. Giacomo Delledonne, Constitutional courts dealing with electoral laws: comparative remarks on Italy and Hungary (2019) (examining major trends in the case-law of constitutional courts in Italy and Hungary on the constitutionality of electoral laws)
  8. Jurgen de Poorter, Ernst Hirsch Ballin, and Saskia Lavrijssen (eds.), Judicial Review of Administrative Discretion in the Administrative State (2019) (comparatively examining the role of the judiciary in the administrative state)

Call for Papers and Announcements

  1. Nominations are welcome for the Mark Tushnet Prize in Comparative Law, presented to an early-career scholar. Details are available here. The deadline is August 1, 2019.
  2. The International Forum on the Future of Constitutionalism invites submissions for its conference on “Constitution-Making and Constitutional Change” to be held at the University of Texas Law School on January 17-18, 2020. More details are available here.
  3. The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) solicits nominations, including self-nominations, for the annual Richard M. Buxbaum Prize for Teaching in Comparative Law. Early stage scholars in a tenure-track position at an ASCL Member Institution are eligible to apply.
  4. The Younger Comparativist’s Committee of the American Society of Comparative Law (ASCL YCC) invites paper submissions from emerging scholars for a panel at the ASCL’s annual meeting to be held at the University of Missouri Law School in Columbia, Missouri, on October 17-19, 2019. The deadline for submissions is August 10, 2019. The University of Zurich organizes a conference on “Extraterritorial Human Rights Obligations in the Age of Reemerging Nationalism – Are They Really Justified?” on November 21-22, 2019.
  5. The African Network of Constitutional Lawyers (ANCL), University of Nairobi School of Law, Konrad-Adenauer-Stiftung, Democratic Governance & Rights Unit at the University of Cape Town, and the Faculty of Law at Stellenbosch University invite submission for the ANCL biennial conference on  “The Paradox of Constitutionalism in Africa: Reflecting on 10 years of the Kenyan Constitution,” to be held on August 27-29, 2020, in Nairobi. The deadline for submissions is July 31, 2019.
  6. Washington School of Law organizes its 32nd Annual Indian Law Symposium on September 5-6, 2019 in Seattle.
  7. University of Ottawa Law School invites for the Fourth Biennial Public Law Conference on “Public Law: Rights, Duties and Powers,” to be held on June 17-19, 2020. The deadline for submissions is September 2, 2019.
  8. Association of American Law Schools Advancing Excellence in Legal Education organizes the 2020 Annual Meeting on “Pillars of Democracy: Law, Representation, and Knowledge,” to be held on January 2-5, 2020, in Washington D.C.
  9. The Florence Competition Programme announces the annual conference “Hipster Antitrust, the European Way?” to be held on October 25, 2019. 

Elsewhere Online     

  1. Yonatan Fessha, Internal Secession and Federalism in Ethiopia, IACL-AIDC BLOG
  2. Elena Kremyanskaya, Symposium: Recent and Potential Future Constitutional Developments in Russia, IACL-AIDC BLOG
  3. Oreste Pollicino, New Technology, Algorithms and the Rising of Private (Digital) Powers and new Challenges for Constitutional Law, EUreka!
  4. Klaus Detterbeck, Political Parties: Driving Federal Dynamics, Adapting to Federal Structures, 50 Shades of Federalism
  5. Hans-Martien ten Napel, The Natural Law and Natural Rights Tradition: A Foundation for Religious Freedom, LSE
  6. Joelle Grogan, Prorogation is a Paper Tiger, but Time is the Elephant, Verfassungsblog
  7. Nadija Samour, “Say My Name”: The Politics of Not Naming, Verfassungsblog
  8. Tom Spencer, The Sovereignty of Parliament, the Rule of Law, and the High Court of Parliament, UK Constitutional Law Association
  9. Joseph Nathan, Southeast Asia’s democracies must be reformed, Asia Times
  10. William Pesek, Abe’s post-election “to do” list is long but achievable, Asia Times
  11. Sam Wang, If the Supreme Court Won’t Prevent Gerrymandering, Who Will?, The New York Times
  12. Andrew Rettman, Ugly face of Polish judicial reforms laid bare, euobserver
  13. Abusaleh Shariff, Ayodhya as Cultural Smart City: A Mediation Proposal for the Mosque-Temple Dispute, The Wire
  14. Sándor Lénárd, “The pressure to standardize constitutions is a pernicious assault on national autonomy” – conversation with Professor Nelson Lund, precedens.mandiner
  15. Sándor Lénárd, The “administrative state” and the “deep state” both result in problems, conversation with Professor Randy Barnett, precedens.mandiner
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Published on July 22, 2019
Author:          Filed under: Developments
 

Invitation from I-CONnect — Books for Review

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

We are pleased to continue our practice of inviting our readers to express an interest in reviewing books in public law here at I-CONnect. The books we have received this purpose is available below.

  1. Benito Alaez Corral (ed.), Conflictos de derechos fundamentales en el espacio publico (Marcial Pons 2017)
  2. Richard Albert, Carlos Bernal & Juliano Zaiden Benvindo, Constitutional Change and Transformation in Latin America (Hart 2019)
  3. Richard Albert, Paul Daly & Vanessa MacDonnell, The Canadian Constitution in Transition (University of Toronto Press 2019)
  4. George Anderson and Sujit Choudhry (eds.), Territory and Power in Constitutional Transitions (Oxford University Press 2019)
  5. Vito Breda (ed), Legal Transplants in East Asia and Oceania (Cambridge University Press 2019)
  6. Jose Luis Garcia Guerrero and Maria Luz Martinez Alarcon (eds), Constitucionalizando la Globalizacion, Volumes 1 and 2 (Tirant lo Blanch 2019)
  7. Oliver Gerstenberg, Euroconstitutionalism and its Discontents (Oxford University Press 2018)
  8. Ron Levy, Hoi Kong, Graeme Orr & Jeff King (eds.), The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press 2018)
  9. Carissima Mathen, Courts Without Cases: The Law and Politics of Advisory Opinions (Hart 2019)
  10. Piotr Mikuli, Natalie Fox & Radoslaw Puchta, Ministers of Justice in Comparative Perspective (Eleven International Publishing 2019)
  11. William Phelan, Great Judgments of the European Court of Justice (Cambridge University Press 2019)
  12. Jorge Ernesto Roa Roa, Control de Constitucionalidad Deliberativo (Externado University Press 2019)
  13. Wojciech Sadurski, Poland’s Constitutional Breakdown (Oxford University Press 2019)

Please register your interest here by August 2, 2019, if you would like to review one of these books. A confirmation will follow. Preference will be given to early-career scholars and first-time I-CONnect contributors.

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Published on July 19, 2019
Author:          Filed under: Reviews
 

The Rule of Law and the Judicial Retirement Age in Poland: Is the ECJ Judgment the End of the Story?

Matteo Mastracci, Koç University

On June 24, 2019, the Grand Chamber of the European Court of Justice delivered its long hoped for judgment over the retirement age dispute introduced by the Polish legislator through the so-called “Law on the Supreme Court.” Following the passage of this law, all sitting judges were forced to retire early (at 60 for women and at 65 for men, rather than 70) and with immediate effect. Because of it, 27 out of 72 judges of the Supreme Court, including the First President, would have been directly affected unless they were given relief through a formal process coming from the hands of the President of the Republic.

The Court was asked to issue a judgment by the Commission on October 2, 2018, relying on Article 258 TFEU, an infringement mechanism devised against failures in complying with Treaty obligations. This infringement was based on the delay of the Polish authorities in replying timely to a reasoned opinion of the Commission dated August 14, 2018. Indeed, the Polish actors should have replied within one month of the delivery of the reasoned opinion, so no later than September 14.

However, while the Court proceedings were pending, and quite surprisingly, on December 17, 2018, the Polish government retraced its steps, by way of a U-turn, when the President of the Republic signed a new Law amending the former one, which entered into force the January 1, 2019. According to the new law, the judges of the Supreme Court, including the First President of the Supreme Court, who were retired pursuant to the earlier one are now reinstated in their position and the performance of their duties is deemed to have continued without interruption. It was then a logical and predictable consequence that Poland requested a procedural withdrawal based on a concrete lack of purpose in keeping the infringement procedure in place.

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Published on July 19, 2019
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The Grass is Always Greener on the Other Side: Proportional Representation vs. Majoritarian Election Systems

Rivka Weill, Harry Radzyner Law School, IDC Herzliya. This post is based on a lecture delivered on July 1, 2019 at the ICON-S Annual Conference at Pontifical Catholic University in Santiago, Chile.

In the US, there is an allegedly recurrent problem of gerrymandering of voting districts. The legal challenges against gerrymandering allege that districts are drawn to favor the political party in control of state legislatures. In addition, contenders argue that gerrymandering diminishes the voting power of disadvantaged minorities. The US Supreme Court in its latest 5-4 holding on June 27, 2019, decided that it would not intervene in partisan gerrymandering since there was no readily available justiciable measure to guarantee more democratic results and this amounted to a “political question.”[1] Some scholars advocate the adoption of a proportional representation (PR) election method in the US as a preferable method to address gerrymandering and better reflect the popular will. My purpose is to reveal some of the less obvious tradeoffs between the type of an election system and democratic values.

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Published on July 18, 2019
Author:          Filed under: Analysis
 

Call for Papers–Symposium on “When is a Constitutional Amendment Illegitimate?”–National University of Singapore–March 19-20, 2020

The National University of Singapore Faculty of Law
Centre for Asian Legal Studies


in collaboration with the

The University of Texas at Austin

invite submissions for

Symposium on “When is a Constitutional Amendment Illegitimate?”

The National University of Singapore (NUS)
Faculty of Law
March 19-20, 2020

Convened by

Jaclyn Neo (NUS)
Kevin Tan (NUS)
Richard Albert (Texas)

Submissions are invited from early-career scholars—including post-doctoral fellows, graduate students, and faculty whose full time appointment was no longer than five years ago—for a symposium on “When is a Constitutional Amendment Illegitimate?,” a foundational question at the center of the study of constitutional change.

Convened by Jaclyn Neo (NUS), Kevin Tan (NUS), and Richard Albert (Texas), this symposium will be held on the historic campus of The National University of Singapore Faculty of Law on March 19-20, 2020. It is the intention of the conveners to publish a selection of papers in a peer-reviewed edited volume with an academic press.

Subject-Matter of the Symposium

There has recently been an explosion of scholarship interrogating whether constitutional amendments can be unconstitutional. This is not just an academic inquiry—courts all over the world in Africa, Asia, Europe, and the Americas have engaged with and, at times, applied the doctrine of unconstitutional constitutional amendment to check political actors seeking substantially to change the constitution. This area of inquiry raises critical questions about the relationship between legality and legitimacy. Indeed, a central pillar of the unconstitutional constitutional amendment doctrine is that a procedurally valid amendment is nonetheless illegitimate. Constitutionality, in these cases, therefore becomes tied to ideas about legitimacy.

However, legitimacy is a complex and multidimensional concept. Fallon, for instance, points to three forms of legitimacy: legal, sociological, and moral. Legitimacy has also been conceptualized as rightfulness, appropriateness, and more. While legality is only one criterion for legitimacy, it is by no means the only one. For this reason, one may even envisage an illegal constitutional amendment as legitimate. The Ackermanian theory of constitutional moments suggests the possibility of constitutional amendment through formally illegal procedures that are legitimated by overwhelming expressions of popular approval. Along the same lines, the Fifth French Republic has lived its own encounter with illegality—the 1962 referendum on direct presidential election using Article 11 instead of Article 89 to amend the Constitution—in the face of which the Constitutional Council declined to exercise jurisdiction to evaluate the claim that the amendment had been illegal.

In addition, one may conceptualize certain amendments as legitimate by one criterion and illegitimate by another. Besides the possible dissonance among the legal, sociological, and moral dimensions of legitimacy, it is also possible that legitimacy depends on which theory or vision of the constitution to which one is committed. Accordingly, the question of legitimacy of constitutional amendments is one that bears closer examination.

This Symposium invites submissions that go beyond current inquiries focused on the judicial doctrine of unconstitutional constitutional amendment to explore other questions and controversies that the practice of constitutional amendment raises for the concept of legitimacy. Many questions present themselves for inquiry. For instance, where reformers have turned to formally illegal procedures to amend the constitution, how have they been able to validate these amendments as legitimate, or not? How have competing conceptions of legitimacy of constitutional amendments been resolved or otherwise? What do we mean by legitimacy and how is it measured—and by whom—in your jurisdiction(s) under study.

Comparative studies are welcome, as are single-jurisdiction studies. Preference will be given to submissions that do not take a court-centric approach, that deprioritize the well-known American and French cases, and that shed new and needed light on this subject.

Structure of the Symposium

This symposium will feature a small number of papers. Each paper will be the focus on an intensive workshop involving all symposium participants. The purpose of this structure of the program is to devote significant time to each submission in order to prepare it for submission for peer-review and ultimately for publication. All symposium participants will have read all submissions prior to the program in order to facilitate a robust and constructive discussion on each submission.

Eligibility

Submissions are invited from various disciplines (including history, law, political science, sociology). Submissions are welcomed on any subject related to the subject-matter of the program identified above. Submissions may take comparative, doctrinal, empirical, historical, philosophical, sociological, theoretical or other perspectives.

Submission Instructions

Interested scholars should submit a title and abstract no longer than 500 words by September 15, 2019 via this link. The abstract will form the basis of the pre-conference draft (no longer than 10,000 words (all notes included)) to be submitted by 4pm, New York time, on March 1, 2020 in both Word and PDF formats.

Notification

Successful applicants will be notified no later than October 31, 2019.

Costs

There is no cost to participate in this symposium. Group meals will be generously provided by organizers. Limited funding may be available for successful participants.

Questions

Please direct inquiries in connection with this Symposium to:

Jaclyn L. Neo (NUS): jaclyn.neo@nus.edu.sg

Kevin YL Tan (NUS): lawtylk@nus.edu.sg

Richard Albert (Texas): richard.albert@law.utexas.edu

About the Convenors

Richard Albert is the William Stamps Farish Professor in Law and Professor of Government at the University of Texas at Austin. Author of Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019), his scholarship on constitutional change has been translated into Chinese, French, Hungarian, Portuguese, Russian, and Spanish. He has held visiting faculty appointments at Yale University, the University of Toronto, the Externado University of Colombia, and the Interdisciplinary Center Herzliya. He holds law and political science degrees from Yale, Oxford, and Harvard and is a former law clerk to the Chief Justice of Canada, where he was born and raised.

Jaclyn L. Neo is an Associate Professor of Law at the National University of Singapore (NUS). She is a graduate of NUS Faculty of Law, and Yale Law School. She is the sole editor of Constitutional Interpretation in Singapore: Theory and Practice (Routledge, 2017) and co-editor of Pluralist Constitutions in Southeast Asia (Hart, 2019), and Regulating Religion in Asia: Norms, Modes, and  Challenges (CUP 2019). Jaclyn has also served as a guest editor for the Singapore Academy of Law Journal, the Journal of Law, Religion, and State, the Journal of International and Comparative Law, and the Journal of Comparative Law. Her work has been cited by the Singapore courts and the Supreme Court of India. Jaclyn has held visiting faculty appointments at the Cluster of Excellence ‘The Formation of Normative Orders’ at Frankfurt University, University of Münster, University of Trento, Melbourne Law School, and will be appointed to the Princeton faculty for the fall semester of 2019.  

Kevin YL Tan specializes in Constitutional and Administrative Law, International Law and International Human Rights. He graduated with an LLB (Hons) from the Faculty of Law at the National University of Singapore and holds an LLM and JSD from the Yale Law School. He currently holds Adjunct Professorships at the Faculty of Law, National University of Singapore (NUS) as well as at the S Rajaratnam School of International Studies, Nanyang Technological University (NTU) where he teaches constitutional law, international law and international human rights. He has published widely in his areas of specialization and has written and edited over 40 books on the law, history and politics of Singapore. From 1998-2000, he was Chief Editor of the Singapore Journal of International and Comparative Law and from 2000-2003 was the journal’s Adjunct Editor. He has also served previously as Editor-in-Chief of the Asian Yearbook of International Law (2010–2017) and is currently Executive Editor of the Asian Journal of Comparative Law (since 2016) and Editorial Board member of the Korean Journal of International and Comparative Law (since 2013). Kevin also serves on the Board of Governors of the Human Rights Resource Centre (HRRC).

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Published on July 16, 2019
Author:          Filed under: Developments
 

What’s New in Public Law

–Nausica Palazzo, Adjunct Lecturer in Public Law (Bocconi University)

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 European Court of Human Rights accepted to consider a case on the removal of children from their “radical Christian” families by the Norwegian government.
  2. The Supreme Court of India dismissed a petition seeking to allow Muslim women to enter Mosques for offering prayers.
  3. The Constitutional Court of Croatia quashed the rulings of administrative courts holding that former Deputy Prime Minister Karamarko was in a conflict of interest.
  4. The Constitutional Court of Turkey declared that the revocation of a certificate of inheritance for loss of citizenship violates the right to property.
  5. Amicus briefs in the SCOTUS cases on whether Title VII of the 1964 Civil Rights Act prohibits discrimination against LGBTQ people are now available.
  6. The Supreme Court of India will hear arguments on the constitutionality of the article of the Constitution granting special status to status to the state of Jammu and Kashmir.
  7. A Hungarian opposition party filed a petition with the Constitutional Court to review the legality of a Russian investment bank receiving full diplomatic privileges.
  8. Prosecutors in Ukraine drafted charges against a former constitutional court judge for the abuse of power to aid former President Yanukovych. Several other sitting and former judges of the Court are being investigated, including in relation to the constitutional unamendability decision of 2004.

In the News

  1. A Court of Appeals in Rome sentenced 24 former Latin American officials involved in the death of “desaparecidos” to life imprisonment.
  2. Prominent U.S. legal scholars signed a letter endorsing the idea of a constitutional amendment to end life tenure for Supreme Court justices.
  3. The UK Parliament passed legislative amendments to extend same-sex marriage and abortion access in Northern Ireland.
  4. The US Court of Appeals for the Ninth Circuit upheld an injunction that prevents President Trump from using military funds to build a border wall with Mexico.
  5. An independent assessor ruled that the Irish government misinterpreted a decision by the European Court of Human Rights on school sexual abuse by unduly restricting the conditions they must meet for redress.
  6. The Parliament of France passed a law to tax large tech companies.
  7. California becomes the first state to ban racial discrimination based on a hairstyle in schools and workplaces.
  8. Georgia considers postponing the implementation of the proportional electoral system until 2024 by a constitutional amendment.
  9. Malaysia considers a constitutional amendment to lower the voting age from 21 to 18.
  10. U.S. Secretary of State Pompeo announced the creation of a Commission on Inalienable Rights.
  11. The Federal Administrative Court of Germany rejected religious freedom objections of a Sikh man concerning the obligation to wear a helmet on motorcycles.

New Scholarship

  1. Cheryl Saunders, International Involvement in Constitution Making (2019) (exploring the tension between various forms of international involvement in constitution-making and national sovereignty, and outlining a more coherent framework for assessing it based on the concept of “national ownership”)
  2. Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019) (mapping the “wrongs” perpetrated by the actors involved in the design and implementation of reproductive rights, including pharmacists, obstetricians, labs, courts and law-makers, and the way they impact on pregnancy or parenthood)
  3. Oona A. Hathaway et al., Aiding and Abetting in International Criminal Law, 104 Cornell Law Review (2019) (offering a case law analysis of the definition of complicity under international law to argue that US courts’ interpretation under the Alien Tort Statute is inaccurate)
  4. Richard A. Bales & Katherine V.W. Stone, The Invisible Web of Work: The Intertwining of A-I, Electronic Surveillance, and Labor Law, 41 Berkeley Journal of Labor and Employment Law (forthcoming 2019) (exploring how AI mechanisms are impacting practices of hiring, monitoring, and dismissing workers, and the challenges they pose to workers’ protections)
  5. Paul P. Craig, General Principles of Law: Treaty, Historical and Normative Foundations, in Katja Ziegler, Päivi Neuvonen, & Violeta Moreno-Lax (eds.), Research Handbook on General Principles of EU Law (forthcoming 2019) (analyzing the controversial concept of “general principles of law” in EU law along three foundational issues: text, historical evolution, and their formal and substantive legitimacy)
  6. SpearIt, The Catholic Church Sex Scandal and the Dying Death Penalty: Issues at the Intersection of Religion, Crime, and Punishment (2019) (arguing that opponents of the death penalty should capitalize on recent investigations against the Catholic Church and ally with religious groups to abolish death penalty)

Special Announcement: Batumi School on Constitutional Democracy

Undergraduate and graduate students are invited to participate in the Batumi International Summer School “Constitutional Democracy: Modern Challenges,” to be held on August 18 to 25, 2019, in Batumi, Georgia at the Batumi Shota Rustaveli State University campus. The summer school will feature keynote lectures, seminars, and group discussions on selected topics relating to constitutional democracy. More information is available here. The registration deadline is July 20, 2019.

Calls for Papers and Announcements

  1. Nominations are welcome for the Mark Tushnet Prize in Comparative Law, presented to an early-career scholar. Details are available here. The deadline is August 1, 2019.
  2. The International Forum on the Future of Constitutionalism invites submissions for its conference on “Constitution-Making and Constitutional Change” to be held at the University of Texas Law School on January 17-18, 2020. More details are available here.
  3. The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) solicits nominations, including self-nominations, for the annual Richard M. Buxbaum Prize for Teaching in Comparative Law. Early stage scholars in a tenure-track position at an ASCL Member Institution are eligible to apply.
  4. The Younger Comparativist’s Committee of the American Society of Comparative Law (ASCL YCC) invites paper submissions from emerging scholars for a panel at the ASCL’s annual meeting to be held at the University of Missouri Law School in Columbia, Missouri, on October 17-19, 2019. The deadline for submissions is August 10, 2019.
  5. Paper submissions to participate in the Fourth Biennial Public Law Conference on “Public Law: Rights, Duties and Powers” are invited. The conference will be held at the University of Ottawa Law School, Common Law Section, on June 17-19, 2020. Abstracts must be submitted by September 2, 2019.
  6. The Institute for International Humanitarian Studies of the Aix-en-Provence Law School welcomes submissions for the INSIDE Workshop on “States Compliance with International Human Rights Law,” to be held at Aix-en-Provence Law School on 2 April 2020. The deadline for submission of abstracts is September 20, 2019.
  7. The University of Sarajevo and the METU Northern Cyprus invite graduate and postgraduate students to participate in the international summer school on “Current Legal Issues in Post-Conflict and Transitional Societies,” to be held in Kalkanli, North Cyprus, on September 4-11, 2019. 
  8. The University of Perugia launched a call for papers and streams for the 2019 Critical Legal Conference on the theme “alienation.” The event will take place on September 12–14, 2019, in Perugia (Italy). The new deadline for submission of abstracts is July 31, 2019.
  9. The West Virginia Law Review invites submissions for its Annual Symposium on the tensions between state and local governments, to be held February 27-28, 2020. Abstracts must be submitted by September 3, 2019.
  10. Bucerius Law School in Hamburg invites applications from recent JD graduates for the Joachim Herz U.S. Exchange Program for Young Legal Scholars. Candidates should submit their application at least two months prior to the beginning of their proposed research stay.
  11. The University of Toronto Law invites application for the position of Director for the International Human Rights Program. Applications are due by July 20, 2019.
  12. The team of “Graz Jurisprudence” at the University of Graz invites application for the position of a University Assistant without a doctorate. The deadline for submission of applications is August 7, 2019.

Elsewhere Online

  1. David Koppe, Protection of migrants at the borders of law, International Law Blog
  2. Suzanne Pepper, Another Hong Kong uprising: defying the sovereign, or a simple demand for local standards of justice?, Hong Kong Free Press
  3. Peter van Elsuwege, Empty Seats in the European Parliament: What About EU Citizenship?, Verfassungsblog
  4. Max du Plessis, The Sum of Four Fears: African States and the International Criminal Court in Retrospect–Part I, Opinio Juris
  5. Lorenzo Leoni, Who should pick party leaders: MPs, members or a wider public?, The Constitution Unit
  6. Antônio Sepulveda & Igor De Lazari, Fighting Against Agencies: Trump and Bolsonaro’s Overcrossing Agendas, Notice & Comment
  7. Syuzanna Vasilyan, Completing Armenia’s Revolution: Transitional Justice and Judicial Vetting, ConstitutionNet
  8. William Aseka, Embracing teenage sexuality: Let’s rethink the age of consent in Ken, AfricLaw
  9. Ruthann Robson, Second Circuit: “RealDonaldTrump” Blocking Users on Twitter Violates First Amendment, Constitutional Law Prof Blog
  10. Thomas Burri, In the wake of the ICJ’s Opinion in Chagos: Britannia waives the rules, Völkerrechtsblog
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Published on July 15, 2019
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Conference Report–Global Constitutionalism from European and East Asian Perspectives

–Yota Negishi, Associate Professor, Seinan Gakuin Unviersity, Japan

This short contribution reports on two events held in Berlin and Leuven on the edited book Global Constitutionalism from European and East Asian Perspectives (Takao Suami, Anne Peters, Mattias Kumm and Dimitri Vanoverbeke, eds., Cambridge University Press 2018).

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Published on July 14, 2019
Author:          Filed under: Developments
 

Why Political Pluralism is Not Enough: Moldova’s Constitutional Crisis

William Partlett, Melbourne Law School

[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 2019, see here.]

Just a month ago in early June, Moldova—one of the smallest and poorest post-Soviet nations—found itself in a major constitutional crisis.  In a space of three days, the Moldovan Constitutional Court blocked the creation of a new coalition government and replaced the sitting president.  Weeks later, however, that same Court annulled these decisions and all six judges resigned in response to allegations that it had “compromised its constitutional role” by “acting exclusively” in the interest of the former ruling party.

This crisis suggests that the problems of post-Soviet constitutionalism are not always ones of judicial weakness. In other post-Soviet contexts, constitutional courts are overly political, deployed as weapons by powerful interests intent on keeping power. Underlying these problems of judicial weakness and weaponization are the same problem: A failure of law and judicial institutions to operate independently from ordinary politics.  

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Published on July 10, 2019
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I·CON Volume 17, Issue 2: Editorial

Best Practice—Writing a Peer-Review Report

The importance of peer review has, if anything, increased in recent times. The enthrallment of current academia with “objective” quantitative measures in the processes of selection, promotion and evaluation of academic performance has put a premium on publication in “peer-reviewed” journals. Instead of a faculty reading carefully the work and making up its own mind as to its quality, they will outsource such to two anonymous peer reviewers. Also, in the face of the avalanche of self-publication in outlets such as SSRN (valuable in and of itself) and the like, peer review may help the discerning reader navigate these channels, thereby providing some guarantee of excellence.

Yet this importance is often not matched by the practice of peer review. The rate of refusal to peer review is as high as 50 percent—oftentimes by authors who themselves have published in, and benefited from, peer-reviewed journals. Authors who publish in I.CON and EJIL undertake to peer review for our journals, an undertaking not always honored. Of course, there is only so much peer reviewing that one can do and we understand when we receive a request to beg off with a promise to do it on some other occasion.

Then there is the problem of tardiness. Four to six weeks is a reasonable time to expect a peer-review report to come in. Frequently, to our and our authors’ frustration it can be as long as twenty-four weeks, after a slew of “gentle” and somewhat less gentle reminders.

And then there is the question of the quality of the review, oftentimes perfunctory and hardly helpful.

So here are some guidelines to this act of high academic citizenship.

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Published on July 9, 2019
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What’s New in Public Law

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

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

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

Developments in Constitutional Courts

  1. The Supreme Court of Indonesia rejected an appeal by a woman who was sentenced to six months in prison for recording and sharing a phone conversation she had with her boss to prove that he was sexually harassing her.
  2. The Court of Justice of the European Union ruled in favour of the Lithuanian Radio and Television Commission imposing a temporary ban on NTV Mir Lithuania broadcasting a program that was deemed to incite hatred based on nationality.
  3. The Supreme Court of India declined to hear a contempt petition which contended that the apex court’s 2018 judgment directing measures to curb mob lynching had not yet been complied with.
  4. The Supreme Judicial Council in Pakistan held a brief hearing on the disciplinary references against Justice Faez Isa of the Supreme Court and Justice K.K. Agha of the Sindh High Court, for allegations of irregular possession of properties.
  5. The Prosecutor General of Ukraine filed a notification of suspicion against a former Constitutional Court judge, Serhii Vdovychenko, in connection with the case in which former president Viktor Yanukovych is suspected of usurping power.
  6. The High Court of Australia will hear an appeal against the judgment of the Federal Court, which ruled that beaches north of Broome, Western Australia are the exclusive possession of native title holders.
  7. The Supreme Court of the United States declined to hear Alabama’s bid to revive a Republican-backed state law that would have effectively banned abortion after 15 weeks of pregnancy.
  8. The Supreme Court of the United States agreed to hear a bid to reinstate $4.3 billion in punitive damages against Sudan in a lawsuit accusing it of complicity in the 1998 al Qaeda bombings of two U.S. embassies in Kenya and Tanzania that killed 224 people.
  9. After the petitioners failed to make out a case for an urgent hearing, the Constitutional Court of South Africa adjourned the hearing on an application for leave to appeal from a decision of the Western Cape Division of the High Court of South Africa which questioned the constitutional permissibility of a prohibition on eligible South Africans from standing for election to the National Assembly and Provincial Legislatures other than through party lists. The case will now be heard on August 15. Judgment here.

In the News

  1. The Hungarian National Assembly passed a controversial bill which drastically reduces the financial and operational autonomy of the Hungarian Academy of Sciences as well as certain other research institutions.
  2. The High Court of Tanzania issued a judgment on the human rights implications of suspending the Southern African Development Community Tribunal – regional court set up to consider disputes between states as well as between individuals and states.
  3. The Minister of Interior of the Netherlands considers changes to how the Kingdom elects members of both the Eerste Kamer (Houe of Representatives) and Tweede Kamer (Senate). The changes would give more weight to the candidates’ preference votes.
  4. The Gauteng Division of the High Court of South Africa dismissed an application by Julius Malema, leader of the Economic Freedom Fighters party, challenging the constitutionality of one of the last remaining pieces of apartheid-era law.
  5. A proposal in the Dominican Republic that would amend the constitution to allow President Danilo Medina to run for a third term in office sparked protest from opposition lawmakers and critics.
  6. More than 200 major companies urged the Supreme Court of the United States to rule that gay and transgender people are covered by protections afforded under Title VII of the Civil Rights Act of 1964.
  7. The parliamentary opposition parties in Romania lodged a proposal to revise the Constitution that would disable amnesty and pardon in cases where persons have been convicted for corruption.

New Scholarship

  1. The German Law Journal put together a commemorative issue on the contributions of Prof. Donald Kommers to the field of constitutional law and beyond.
  2. Lawrence Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution (2019) (suggesting that in addition to “interpretive fidelity,” judges in the process of interpreting the Constitution of the United States have sought to maintain fidelity to the perceived judicial role). To find the symposium on the book organized by Balinkization, follow this link.
  3. Maria Bertel, Democratization through Decentralization. Why Electoral Laws Matter, 52(1) Verfassung und Recht in Übersee (2019) (assessing the outcome of the process of decentralization introduced by the Peruvian Constitution of 1993).
  4. Alex Parsons, Digital Tools for Citizens’ Assemblies (2019) (assessing the utility of digital tools to improve the flow of information into and out of Citizens’ Assemblies, using the Irish Citizens’ Assembly on the Eighth Amendment as a case study).
  5. Damjan Grozdanovski, The Workload of The European Court of Human Rights: A Back-Door to Becoming a Constitutional Court of Europe, 2(1) Nordic Journal of European Law (2019) (examining the 2010 changes to the Convention mechanism of the ECtHR designed to improve its handling of the caseload).
  6. Han-Ru Zhou, Erga Omnes or Inter Partes? The Legal Effects of Federal Courts’ Constitutional Judgments, 97 Canadian Bar Review (2019) (examining whether the effects of a decision by the Federal Court of Canada or the Federal Court of Appeal apply only to the parties to the case or extends beyond).
  7. Verónica Undurraga and Michelle Sadler, The misrepresentation of conscientious objection: A new strategy of resistance to abortion decriminalisation, 27(2) Sexual and Reproductive Health Matters (2019) (analyzing the conscientious objection exception for performing abortions, in light of its interpretation by the Chilean Constitutional Court in 2017).
  8. Enrique Rabell-Garcia, Local Governments in Latin America, 52(1) Verfassung und Recht in Übersee (2019) (examining federal asymmetries of state and municipal governments in Latin America to argue that states with more symmetry would have greater governance within the federal pact).
  9. Julia Stephens, Governing Islam: Law, Empire, and Secularism in Modern South Asia (2019) (tracing the colonial roots of contemporary struggles between Islam and secularism in India, Pakistan, and Bangladesh). A symposium on the book can be found here.

Call for Papers and Announcements

  1. The Centre for Law and Policy Research (CLPR), in Bangalore, invites applications for the position of a Research Associate. CLPR is a not-for-profit organization dedicated to constitutional law and policy research, social and governance interventions and strategic impact litigation. Applications are accepted on a rolling basis.
  2. The Harvard Academy for International and Area Studies invites applications for a two-year, in-residence, postdoctoral fellowship from outstanding scholars at the start of their careers whose work combines disciplinary excellence in the social sciences or law with a command of the language and history or culture of countries or regions outside of the United States or Canada. The deadline for applications is October 1, 2019.
  3. The Varieties of Democracy Institute, seeks Country Experts for the V-Dem Update 2020, as part of a global, collaborative research project providing the largest ever database on democracy.
  4. The Department of Criminology, Law and Society at the University of California, Irvine invites applications for one or more Assistant Professor positions. Candidates with research interests and expertise in the following areas are preferred: 1) Policing; 2) Global challenges in criminology, law & society; 3) Technology, law, and social control.
  5. The Macquarie University, Sydney invites submissions for an interdisciplinary workshop on “Modes of Activism Under Authoritarian Governance Regimes in The Asia-Pacific,” be held on November 14-15, 2019. This interdisciplinary workshop brings together scholars with research expertise on activism in the Asia-Pacific to explore how civil society actors navigate diverse authoritarian spaces. The deadline for submissions is July 31.
  6. The Faculty of Law, National University of Singapore (NUS) invites applications for a workshop on “Stigmatization, Identities and the Law: Asian and Comparative Perspectives,” to be held on June 23-24, 2020. The deadline for submission of abstracts is August 31, 2019.
  7. The Nordic Journal of European Law invites submissions for its second 2019 issue on the theme of the rule of law in Europe. The deadline for submission of papers is September 27, 2019.
  8. The Pretoria University Law Press published the first volume of the African Court Law Report, covering judgments, advisory opinions and other decisions of the African Court on Human and Peoples’ Rights in 2009-16.
  9. The Australian National University (ANU) College of Law invites applications for the position of Postdoctoral Fellow in several areas including public law. The deadline is 4 August 2019.
  10. Yale Law School invites applications for its Ninth Annual Doctoral Scholarship Conference, to be held on November 8-9, 2019. The deadline for submissions of abstracts is July 8.
  11. The Melbourne Institute of Comparative Constitutional Law (MICCL) invites applications for its Young Scholars Forum, aimed at bringing together junior faculty, post-doctoral fellows, and leading senior international scholars to develop the study of comparative constitutional law through exchange between leaders and emerging scholars in the field. The deadline for submission of applications is August 11, 2019.
  12. The Academic Research Network on EU Agencies and Institutional Innovation (TARN) organizes a two-day conference on “Conference EU Agencies as ‘Inbetweeners’? The Relationship between EU Agencies and Member,” to be held on December 4-5, 2019. The deadline for submission of abstracts is July 31.
  13. The AALS East Asian Law & Society (EALS) Section invites submissions for its main program at the 2020 AALS Annual Conference: “Challenges to the Rule of Law: Lessons from and for Asia.” Those interested in presenting a paper or a work in progress relevant to this topic are invited to submit an abstract by July 31, 2019.

Elsewhere Online

  1. Carlos Arturo Villagrán Sandoval, Latin America: Walking into the Abyss with eyes wide open, IACL-AIDC Blog
  2. Davide Paris, Overruling Roe v. Wade?, Verfassungsblog
  3. Carmel Rickard, What is a Life Worth in Uganda’s Courts?, AfricanLII
  4. Juliano Zaiden Benvindo, Populism meets Congressional Backlash in Brazil: Recasting executive-legislative relations?, ConstitutionNet
  5. Syuzanna Vasilyan, Completing Armenia’s Revolution: Transitional Justice and Judicial Vetting, ConstitutionNet
  6. Linda Greenhouse, It’s Not Nice to Lie to the Supreme Court, The New York Times
  7. David R. Cameron, After marathon meeting, European Council agrees on EU leadership package – a good one, Yale MacMillan Centre
  8. Charles Fried, A Day of Sorrow for American Democracy, The Atlantic
  9. Samuel Issacharoff, When Constraint Fails, Election Law Blog
  10. Radhika Agarwal, Constitutional Law Developments in South Asia in 2019, IACL-AIDC Blog
  11. Oran Doyle, Northern Ireland border poll must avoid pitfalls of Brexit Referendum, LSE Brexit Blog
  12. Theodore Shulman, Timid Restraint, Verfassungsblog
  13. Zoltán Pozsár-Szentmiklósy, The hyper judicialisation of politics in Moldova: Opportunities for constitutional reform, ConstitutionNet
  14. Laurent Pech and Sébastien Platon, The beginning of the end for Poland’s so-called “judicial reforms”? Some thoughts on the ECJ ruling in Commission v Poland (Independence of the Supreme Court case), EU Law Analysis
  15. Sanford Levinson, On the Gerrymandering Decision: Don’t Mourn, Organize–and “Rise Up”, Balkinization
  16. Richard Pildes, The Census Decision: Institutional Realism, Institutional Formalism, and Judicial Review, Balkinization
  17. Hyunah Yang, Punishment for Abortion will Vanish from Korea’s Criminal Code: the April 2019 Constitutional Court Decision, Reprohealthlaw Blog
  18. Jeffrey Toobin, Clarence Thomas’s Astonishing Opinion on a Racist Mississippi Prosecutor, The New Yorker
  19. Amy Howe, Opinion analysis: Justices reverse death sentence for Mississippi inmate, SCOTUS Blog
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Published on July 8, 2019
Author:          Filed under: Developments