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I·CONnect

Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

Five Questions with Sabino Cassese

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

This edition features Sabino Cassese, currently Honorary President of the International Society of Public Law (ICON-S). His full bio follows below:

A university professor since 1961 (with two pauses, first in 1993-1994 when he was a member of the government, and then from 2005 to 2014 when he was a Justice on the Italian Constitutional Court), Professor Sabino Cassese has recently edited the “Research Handbook on Global Administrative Law” (Elgar 2016). He is the editor-in-chief of the “Rivista trimestrale di diritto pubblico” and of the “Giornale di diritto amministrativo.” Professor Cassese is a member of many editorial boards of foreign periodicals and has been awarded eight honorary doctorates from foreign and Italian universities. He has taught administrative and public law, constitutional law, State and the economy, global administrative law, comparative administrative law and has also published extensively on these subjects. Professor Cassese is presently teaching global law and governance at the School of Government at the LUISS Guido Carli University in Rome. His most recent book, just published, is on “Democracy and its Limits” (Milano, Mondadori, 2017).

1. Tell us about something you are working on right now.

I am currently working on the global dimension of democracy. My main questions are: Is there a universal concept of democracy? Is democracy a universal and shared value? And is there a universal right to democratic governance, a right that is necessarily a global right? Is there, or can there be, democracy at the global level? Is global democracy similar to national democracy? Does globalization hollow out national democracy? Or, on the contrary, may global bodies enhance national democracies? If the State is the place where democracy has developed, what will happen to democracy if the State becomes less important and many decisions are being taken by supranational or global actors? Will national democracy evaporate? Or will it be replaced by a cosmopolitan democracy?

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

“Nulla dies sine linea” (Not a day without a line), said Greek painter Apelles, according to the Roman philosopher Pliny. I follow his advice. Never does a day pass (including holidays and weekends) without reading or writing. My apartment, public libraries, university offices, planes, trains, airports, are good places to work, read, take notes, prepare drafts, and re-read texts.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

I never miss reading new articles or books written by Yves Meny, Armin von Bogdandy, Pasquale Pasquino (he should collect in one or two volumes all his papers, most of them unknown to the large public), Paul Craig, Joseph Weiler, Bernard Manin, and Raoul van Caenegem.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

I continue to go back to the works of French historian Fernand Braudel, of the German public law professor Carl Schmitt, of the British constitutional law teacher Albert Venn Dicey, and of the German novelist Thomas Mann. Their major contributions capture the spirit of their and of our time, and are a source of inspiration.

5. What are some of the big questions ripe for inquiry in your area of research interest?

I think that some of the major issues of our time are: What is the future of democracy? Where do we go from here? How to fight authoritarian populism? And can horizontal accountability balance the deficiencies of national democracies?

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Published on February 17, 2017
Author:          Filed under: Reviews
 

Brazil’s Increasingly Politicized Supreme Court

Juliano Zaiden Benvindo, University of Brasília

Brazil was faced with a tragic event this January. Justice Teori Zavascki, one of the most respected members of the Brazilian Supreme Court, was one of the five victims of a plane crash into the sea near Paraty, a colonial town off the coast of Rio de Janeiro state. His death immediately stirred up conspiracy theories, because he presided over, at the Supreme Court, the so-called “Car Wash” probe into the massive bribery scandal involving senior politicians and prominent figures of the business sector.[1] Preliminary investigations, however, have suggested that the pilot probably lost control of the aircraft amid heavy rain.[2]  President Michel Temer was then tasked with the duty of appointing a new justice to the bench. In normal circumstances and other times, this procedure would generate little social interest in Brazil. No longer. The debates over who would be the next justice gained momentum and the potential nominees were closely scrutinized both by the traditional media and on social media. As a symptom of a soaring influence of the Brazilian Supreme Court over matters of significant social impact, it is natural that justices have become a key issue in the political spectrum. Is Brazil heading towards a similar system of politicized appointments as the U.S. Supreme Court?

As is widely known, the selection of justices for the U.S. Supreme Court has long been the subject of serious debates, and, particularly in matters of political disagreement such as abortion and gay rights, has been used as a strategy to overturn the Court’s precedents. Robert Post and Reva Siegel, while critically examining the distinct interpretations of backlashes after Roe v. Wade on abortion, for example, call it ”Roe Rage,” which has led academics to lose confidence in the willingness of the Supreme Court to advance progressive agendas amid “the ferocity of the conservative counterattack.”[3] Recently, this conflict reached its peak during the blockade Republicans imposed on President Obama’s nominee, Merrick Garland,[4] and following President Trump’s nomination of the conservative judge Neil Gorsuch to the bench. Nominees for the Supreme Court have generally shared values and opinions with the incumbent President and his party, and, despite the expectation of acting independently once on the bench, history has proven what Lee Epstein and Eric A. Posner describe as the “loyalty effect,” although one that has been less strong in the case of Republican justices.[5] The nomination of a justice to the Supreme Court is therefore an episode that intimately links law with politics. It has become such a political event that is not surprising to see President Trump unveiling his nominee in such an unorthodox manner that the New York Times would dub it “The Supreme Court Meets Reality TV.”[6]

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Published on February 16, 2017
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Video Interview: Get to Know the Center for Constitutional Democracy at Indiana University

Richard Albert, Boston College Law School

In this installment of our video interview series at I-CONnect, I interview Susan Williams and David Williams from the Center for Constitutional Democracy (CCD). Both chaired professors at the Maurer School of Law at Indiana University, Susan and David Williams serve as Director and Executive Director, respectively, of the CCD.

What is the CCD? Here is a short description:

The CCD is a pioneer in the development of the emerging discipline of constitutional design, which provides an in-depth understanding of how law contributes to democratic institutions, democratic practices, and democratic cultural evolution. We train students in this evolving area of expertise, preparing them to support reform and to promote peace and justice in a global environment.

By serving as advisors during the processes of constitutional drafting and reform, providing training to civil society and women’s groups in order strengthen their participation in the constitutional process, and offering PhD students and JD affiliates valuable and unique opportunities for research, fieldwork, and access to distinguished visiting scholars and conferences, the CCD seeks to transform the ideals of a productive democracy into firmly entrenched realities across the world. Nations and communities that value and promote the rights of women and disenfranchised minority groups, that appreciate the value in enforcing a system of checks and balances, and that perceive constitutions as important cultural tools in the promotion and longevity of democratic practices – these are the ones most likely to achieve long-term economic, political, and social stability. The multi-faceted, interdisciplinary work that the CCD does is always in service of this larger goal.

In our interview, Susan and David Williams discuss the origins of the CCD, how they see their role as advisors to constitution-makers, and how the Center gets involved in constitutional design projects around the world.

We also discuss the connection between scholarship in constitutional design and the actual work of designing constitutions, as well how scholars of constitutional design might improve their scholarship to better reflect the realities of constitution-making and re-making.

The CCD has an informative webpage, a new affiliated journal called the Indiana Journal of Constitutional Design, and what is to my knowledge the first and only doctoral degree in constitutional design in the United States.

I-CONnect invites you to get to know the work of the CCD.

The full interview runs roughly 27 minutes, and is available here.

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Published on February 15, 2017
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Narrowing the Dialogue: The Italian Constitutional Court and the Court of Justice on the Prosecution of VAT Frauds

Diletta Tega, University of Bologna

Some recent cases on VAT frauds are the background of a strained dialogue between the Italian Constitutional Court (ICC) and the European Court of Justice (ECJ). Although the latter has the last word on the scope and meaning of State obligations under EU law, the former claims the final say on the extent to which international and supranational law may enter the national legal system. Notwithstanding some mutual roughness in the first stages of this conversation, both courts would do better by not trying to assert their own ultimate authority and instead using it most sparingly and prudently. Narrowing the scope of the controversy might be the best path towards a common ground.

Criminal offences for VAT evasion are often perpetrated through elaborate organizations and operations. Consequently, investigations require such a long time that the statute of limitations in the Italian Criminal Code may bar their prosecution.

In its 2015 Taricco judgment, the Grand Chamber of the ECJ held that, based upon the rather broad phrasing of Article 325 TFEU, national limitation periods should neither prevent effective and deterrent penalties “in a significant number of cases of serious fraud affecting EU financial interests”, nor provide for time limits for frauds affecting national financial interests longer than those affecting EU financial interests.

The ECJ also added – somewhat unexpectedly – that national courts should verify themselves if national limitation periods are incompatible with Article 325 TFEU and, if need be, disapply those national provisions. According to the ECJ, by doing so, national courts would not infringe Article 49 of the EU Charter of Fundamental Rights or Article 7 ECHR with regard to pending criminal proceedings. At the time when they were committed, the alleged crimes constituted the same offence and were punishable by the same penalties which would be applied. The extension of the limitation period and its immediate application (i.e.: the disapplication of a shorter period) are not prohibited, when the offences have never become subject to limitation.

In Italy, some courts did not hesitate to directly perform the Taricco tests, including the Court of Cassation (judgment no. 22100/2015). In some cases, this led to the court not applying the relevant provisions of national law.

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Published on February 14, 2017
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 General Court of the European Union ruled that the European Central Bank (ECB) is not obligated to compensate commercial banks for losses they incurred in 2012 from the restructuring of the Greek debt.
  2. The Constitutional Court of Romania declined to rule on the withdrawn draft decree decriminalizing some corruption offences and official misconduct.
  3. The Constitutional Court of Kenya declared the law criminalizing defamation invalid.
  4. The Constitutional Court of Zimbabwe rejected a case that challenged President Robert Mugabe’s fitness to rule.
  5. The Supreme Court of India refused to modify its earlier ban on sale of firecrackers in Delhi and the National Capital Region (NCR).
  6. The Constitutional Court of Romania ruled unconstitutional a bill under which Swiss franc loan debtors would have been given the right to convert their loans at the exchange rate prevailing on the date that the loan contract was signed.
  7. The European Union approved 19 judges who will serve at the new Hague-based Kosovo Specialist Chambers, set up to try former Kosovo Liberation Army members for 1990s wartime crimes.
  8. The Constitutional Court of Georgia ruled unconstitutional a regulation allowing the Ministry of Internal Affairs to permanently retain information on a person’s history of administrative offenses.
  9.  The Taiwanese Judicial Yuan will convene a meeting of the Council of Grand Justices on March 24, to debate two requests for constitutional interpretation concerning same-sex marriage. The Council announced that the debate will be broadcast live.

In the News

  1. The Cheyenne River Sioux Tribe challenged the construction of the Dakota Access Pipeline.
  2. Justice of the Supreme Court of Brazil Roberto Barroso calls for drugs legalization to undo the growing power of drug gangs and ease the strain on the country’s penitentiary system.
  3. Switzerland approved a constitutional amendment to ease naturalization of third-generation immigrants in a referendum.
  4. The referendum in Turkey on an amendments package that seeks to extend presidential powers has been set for 16 April, after President Erdogan approved the constitutional reform bill.

New Scholarship

  1. Farrah Ahmed & Adam Perry, Standing and Civic Virtue, Law Quarterly Review (forthcoming 2017) (examining the test for public interest standing in the UK, according to which the civic virtue is essential for a claimant to obtain leave for judicial review)  
  2. David G. Barnum, Judicial Oversight of Interception of Communications in the United Kingdom: An Historical and Comparative Analysis, 43 Georgia Journal of International and Comparative Law (2016) (examining the history and current status of the UK Secretary of State for the Home Department and courts in the issuance of interception warrants through a comparative perspective)
  3. Luís R. Barroso, Reason Without Vote: The Representative and Majoritarian Function of Constitutional Courts, in Thomas Bustamante & Bernardo Gonçalves Fernandez (eds.), Democratizing Constitutional Law: Perspectives on Legal Theory and Legitimacy of Constitutionalism (2016) (analyzing the counter-majoritarian and representative roles of contemporary constitutional courts in a case study of the Supreme Court of Brazil)
  4. David Bilchitz, Dignity, Fundamental Rights and Legal Capacity: Moving Beyond the Paradigm Set by the General Comment on Article 12 of the Convention on the Rights of Persons with Disabilities, 32 South African Journal on Human Rights (2016) (focusing on the legal and philosophical approach to be adopted towards the understanding of dignity and the fundamental rights of those individuals who have psychosocial disabilities)
  5. David Bilchitz & Laura A. Jonas, Proportionality, Fundamental Rights and the Duties of Directors, 36 Oxford Journal of Legal Studies (2016) (considering the applicability of the doctrine of proportionality in the the domain of corporate decision-makings)
  6. Catarina Santos Botelho, Aspirações Constitucionais e Força Normativa da Constituição – Requiem pelo «Conceito Ocidental de Constituição»? (“Constitutional Aspirations and Normative Force of the Constitution – Requiem for the ‘Western Concept of Constitution’?”), Atas das Jornadas Comemorativas dos 40 Anos da Constituição da República Portuguesa de 1976 (forthcoming 2017) (deemphasizing the sharp dichotomy between functional constitutionalism and aspirational constitutionalism)
  7. Xenophon Contiades & Alkmene Fotiadou, The Emergence of Comparative Constitutional Amendment as a New Discipline: Towards a Paradigm Shift, in Richard Albert, Xenophon Contiades and Alkmene Fotiadou (eds.), The Foundations and Traditions of Constitutional Amendment (forthcoming 2017) (discussing the scientific revolution in the study of comparative constitutional amendment)
  8. Chris Jeffords & Joshua C. Gellers, Constitutionalizing Environmental Rights: A Practical Guide, Journal of Human Rights Practice (2017) (summarizing recent empirical scholarship on constitutional environmental rights and offering guidance how environmental rights can be implemented)
  9. Angioletta Sperti, Constitutional Courts, Gay Rights and Sexual Orientation Equality (forthcoming 2017) (arguing  that courts operate as major exporters of models and principles and that judicial cross-fertilization also helps courts in increasing the acceptability of gays’ and lesbians’ rights in public opinions and politics)

Calls for Papers and Announcements

  1. The Sant’Anna School Dirpolis (Law, Politics, Development) Institute organizes a conference on ‘Constitutional Homogeneity and Rule of Law in the European Union: An Interdisciplinary Dialogue,’ within a Jean Monnet Module on European Public Law, to be held in Pisa, on April 11, 2017.
  2. The Duke Journal of Constitutional Law and Public Policy hosts a symposium on ‘Voting Rights in Polarized America,’ to be held on February 17, 2017.
  3. The Centre for Migration Law at the Radboud University Nijmegen invites submissions to its conference on ‘Transnational families and divorce: Revisiting marital break-up in times of global (im)mobilities,’ to be held in Nijmegen, on September 27-29, 2017. Submissions are due by April 30, 2017.
  4. The World Association of Constitutional Justice invites applications to present a report or a communication at the III World congress of constitutional justice – ‘Constitution and justice at the beginning of XXI century,’ to be held in Bologna, on October 10-13, 2017. Abstracts must be sent by March 31, 2017.
  5. The Africa Journal of Comparative Constitutional Law (AJCCL) accepts article proposals for its November 2017 issue. Interested researchers may send their papers to ajccl@ksl.ac.ke by May 31, 2017.
  6. The Utrecht Journal of International and European Law invites submissions for its next general issue. Articles may address any aspect of International and European Law. Interested researchers may submit their papers online by April 18, 2017.
  7. The Institute for International and Comparative Law in Africa (ICLA) at the University of Pretoria, and the Stellenbosch Institute for Advanced Study (STIAS) invite submissions to the Fifth Stellenbosch Annual Seminar on Constitutionalism in Africa (SASCA 2017), to be held on September 19-22, 2017. The deadline for submitting proposals is February 28, 2017. The theme for this seminar is ‘Corruption and constitutionalism in Africa: Revisiting control measures and strategies.’
  8. Law & Social Inquiry (LSI) invites submission to a annual graduate student paper competition in the field of law and social science. LSI publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives. Entries must be received by March 1, 2017.

Elsewhere Online

  1. Mark Tushnet, Trump’s statements express the same kind of populist opposition to constitutional court judges we have seen elsewhere, Verfassungsblog
  2. The state of emergency and the charter, Daily News
  3. Eugene Volokh, Prof. Michael McConnell: ‘A flawed restraining of a flawed order’, The Volokh Conspiracy
  4. Grace Yang, Seven Myths About China Employer Rules and Regulations (aka Employee Handbook), China Law Blog
  5. Sébastien Platon, Marine Le Pen’s Constitutional Programme on the European Union: Use, Misuse and Abuse of Referenda, Verfassungsblog
  6. You may access online the event report from a conference on ‘Oversight of the Rule of Law in the European Union: Opportunities and Challenges,’ co-organised by the Bingham Centre for the Rule of Law and the University of Groningen, The Netherlands.
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Published on February 13, 2017
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Five Questions with Ran Hirschl

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

This edition features Ran Hirschl, currently co-president of the International Society of Public Law. His full bio follows below:

Ran Hirschl (PhD, Yale) is Professor of Political Science and Law at the University of Toronto, and as of 2016, holder of the Alexander von Humboldt Professorship in Comparative Constitutionalism, hosted by the University of Göttingen. In 2014, he was elected Fellow of the Royal Society of Canada (FRSC). Professor Hirschl is the author of Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2004 & 2007), Constitutional Theocracy (Harvard University Press, 2010)—winner of the 2011 Mahoney Prize in Legal Theory; Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press, 2014)—winner of the 2015 APSA C. Herman Pritchett award for the best book on law and courts, as well as over ninety articles and book chapters on comparative constitutionalism and judicial review published in major social science journals, law reviews, and edited collections. Professor Hirschl is the recipient of several prestigious research and scholarly awards in five different countries: Canada, Israel, the United States, Australia and Germany. He is an editorial board member of several leading journals, co-editor of a book series on comparative constitutional law and policy published by Cambridge University Press, and the co-president (2015-2018) of the International Society of Public Law. His work has been translated into various languages, discussed in numerous scholarly fora, cited in high court decisions, and addressed in media venues from the New York Times to the Jerusalem Post.

1. Tell us about something you are working on right now.

I am currently working on a new book on the spatial, political geography dimensions of constitutionalism, past and present. It ties up nicely with a second project I am engaged in on various reactions to so-called “global constitutionalism.” In addition, I am writing a couple of pieces on the methodological horizons of comparative constitutional inquiry, and a paper with Ayelet Shachar on the threat to statist constitutionalism posed by religion.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

Unlike Mark Tushnet or Rosalind Dixon, I prefer to write at home, during the wee hours, early morning or late night. The main determinant of when and how much is, to be frank, family obligations. My better half and life-long intellectual partner has recently assumed a directorship position with the Max Planck Society (Germany) which opens up a whole new world of intellectual and institutional possibilities for her, but also places serious demands on her time. Add to that a child in his formative high school years, and well … you get the picture. A second factor is travel. I do it frequently and enjoy it a great deal, but sometimes find it taxing in terms of keeping my eyes on the writing ball. My office time is devoted to meetings with students and professional correspondence in all its variety.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

I follow closely the work of many comparativists, young and younger, in both political science and law. I cherish the intellectual honesty of Sandy Levinson and Vicki Jackson, the versatility of Tom Ginsburg, the daring of Mila Versteeg, and the humanistic depth of Joseph Weiler to name but a few scholars whose work I follow. I am frequently asked to review manuscripts and grant proposals, a fact that helps to keep up with a range of comparative work on constitutional law and politics. With Tom Ginsburg and Zach Elkins, I co-edit a book series on comparative constitutional law and policy. That allows us to review book proposals and to think critically about new ideas, and where the field may be heading.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

Books such as Martin Shapiro’s Courts or Sandy Levinson’s Constitutional Faith are classics that continue to guide my thinking about the constitutional domain and its socio-political context and functions. But I often find myself drawn to non-law literary gems that helped me survive the largely doctrinal first year law school classes, most notably Italo Calvino’s Invisible Cities, Friedrich Dürrenmatt’s The Pledge, Rebecca Goldstein’s The Legacy of Raizel Kaidish, Yaakov Shabtai’s Past Continuous, and Georges Perec’s The Winter Journey, all of which I know nearly by heart.

5. What are some of the big questions ripe for inquiry in your area of research interest?

Economic inequality is obviously a major theme, but since it has been addressed by earlier posts, I shall not say more about it. It may be indicative of a broader problem with constitutionalism, especially in its prevalent liberal breed, namely that it helps take off the table core issues such as class, wealth and inheritance, meaningful democratic representation and other such matters. In addition, I am puzzled by the continuous self-centrism in the study of American constitutionalism, and surprisingly, the study of European constitutionalism as well, while many interesting questions of constitutional politics are better addressed by a genuinely comparative, problem-driven, not setting-driven outlook.

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Published on February 10, 2017
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The Impact of a Trump Presidency for Constitutionalism and Human Rights in Latin America (I-CONnect Column)

Javier Couso, Universidad Diego Portales

[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 2017, see here.]

I.

Ever since the election of Donald Trump to the presidency of the United States, just a few weeks ago, there has been much commentary on the likely impact of his administration in different domains, not just within the United States, but in the entire world. In this column, I address what can be expected from this important turn of events for the development of constitutionalism and human rights in Latin America.

As most observers of international politics know well, ever since the end of the Cold War, Latin America –with the exception of Mexico and Cuba— is not a region that has captured the interest of U.S. foreign policy. This trend is likely to continue under President Trump. This, however, does not mean that his administration will have no impact on the region.

So far, most commentary on the effect of Trump’s presidency in Latin America has focused on the tension that has already developed between the former and Mexico, due to the outrageous policy of constructing a thousand miles-long wall between the United States and Mexico, as well as the economic impact that a protectionist stand by Trump might have in the Latin American region. What has been lacking is any analysis that this peculiar administration may have in the domain of constitutionalism and human rights.

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Published on February 9, 2017
Author:          Filed under: Analysis
 

The Italian Constitutional Court Rules on Electoral System

–Giacomo Delledonne (PhD in Constitutional Law, Scuola Superiore Sant’Anna, Pisa) and Giovanni Boggero (PhD in Public Law, Università del Piemonte Orientale “Amedeo Avogadro”, Alessandria)

On January 25, 2017 the Italian Constitutional Court issued a press release, announcing the key points of its decision concerning the electoral law passed by Parliament in 2015 (the so-called Italicum). In its judgment, which is due to be published by mid-February, the Court strikes down some of the defining features of the Italicum law. Before discussing the judgment in greater detail, it is appropriate to situate it in the wider context of the Italian constitutional politics of electoral reform.

For at least a decade, electoral reforms have been one of the most salient topics in Italian constitutional debates. This reflects the flaws of the unfinished political and institutional transition after 1992-1993, the years in which a major criminal investigation (Tangentopoli) swept away the old political class and a popular referendum brought about a majoritarian electoral system. In this regard, electoral reforms have been no less important than constitutional reforms.

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Published on February 8, 2017
Author:          Filed under: Developments
 

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 Russia ruled that the country does not have to comply with a 2014 European Court of Human Rights (ECHR) ruling to pay 2 billion USD to the shareholders of the now-defunct Yukos oil firm, clarifying that the ECHR decisions oblige Russia to the extent that they comply with the Russian Constitution.
  2. The US Supreme Court denied certiorari in Abbott v. Veasey, which sought to challenge a contentious Texas voter identification law.
  3. The outgoing chief of the Constitutional Court of South Korea insists that the impeachment trial of President Park Geun-hye should end as soon as possible in line with the wishes of the people.
  4. The Federal Constitutional Court of Germany ruled that the Thirteenth Amendment to the Atomic Energy Act is partially incompatible with the Basic Law.
  5. The Constitutional Court of Indonesia dismissed one of its members, Patrialis Akbar, who was taken into custody by the Anti-Corruption Commission (KPK) last week, finding Akbars alleged involvement in a graft scandal a grave offense on judicial ethics.

In the News

  1. The UK Parliament adopted a statute to empower PM Theresa May to notify the EU of the UK’s intent to withdraw.
  2. The Romanian government repealed a decree that had decriminalized corruption offenses and official misconduct in which the damages were less than 44,000 EUR, after public protests and a challenge in the Constitutional Court.
  3. Scotland’s devolved parliament will vote on the triggering of Article 50.
  4. A federal judge in Seattle blocks President Donald Trumps immigration order.
  5. The Parliament in Turkey sent the constitutional amendments that will change the country’s political system to an executive presidential system to President Erdoğan for his approval.

New Scholarship

  1. Richard Albert, Imposed Constitutions with Consent?, Boston College Law School Legal Studies Research Paper No. 434 (2017) (identifying three categories of imposed constitutions–those that are amended, adjudicated and interpreted by others–outside of the context of war or conquest)
  2. Melissa Crouch and Tim Lindsey (eds.), Law, Society and Transition in Myanmar (2017) (addressing the dynamics of the legal system of Myanmar in the context of the dramatic but incomplete transition to democracy that formally began in 2011)
  3. Jens Jungblut and Deanna Rexe, Higher Education Policy in Canada and Germany: Assessing Multi-Level and Multi-Actor Coordination Bodies for Policy-Making in Federal Systems (2017) Policy and Society (analyzing the way in which coordination bodies responsible for higher education policy in two federal countries, Canada and Germany, organize their activities)
  4. David Landau, Substitute and Complement Theories of Judicial Review (forthcoming 2017) Indiana Law Journal (highlighting the utility of a theory of judicial review that emphasizes judicial consideration of external support)
  5. Wojciech Sadurski and Edin Hodžić (eds.), Six working papers on the role and performance of constitutional courts in post-Yugoslav transitions (2017) (exploring doctrinal and methodological assumptions and challenges regarding the role of constitutional courts in democratic transitions in Bosnia and Herzegovina, Croatia, Kosovo, Macedonia, and Serbia)
  6. Ruvi Ziegler, Voting Rights of Refugees (2017) (developing a legal argument about the voting rights of refugees recognised in the 1951 Geneva Convention)

Call for Papers and Announcements

  1. The Porto Faculty of Law, Universidade Católica Portuguesa invites submissions to its conference on Constitutionalism in a Plural World, to be held in Porto, on November 22-23, 2017. The conference focuses on critical examination of constitutionalism. Abstracts are due by July 15, 2017.
  2. The Center for the Study of International Peace and Security (CSIPS) invites submission for its inaugural Annual Middle East Peace Conference on One State, Two State and Third Way solutions to the Israeli-Palestinian conflict: paving the way to a functional  Palestinian state, to be held in London, on May 12, 2017. Submissions are due by February 15, 2017.
  3. Africa Journal of Comparative Constitutional Law welcomes scholarly articles, reviews (book and case reviews) on constitutional law issues that focus on, or are relevant to Africa and the developing world for its inaugural issue.
  4. The Faculty of Law, University of Latvia organizes the Annual Conference of the Central and Eastern European Network of Jurisprudence (CEENJ) on Jurisprudence in Central and Eastern Europe: Work in Progress 2017, to be held in Riga, on September 15-16, 2017. Submissions are due by May 15, 2017.
  5. The Government and Law Research Group at the University of Antwerp organizes the seventh edition of the yearly doctoral conference Hybrid Forms of Governance: Moving Beyond Traditional Public Law, to be held in Antwerp, on May 17, 2017. The conference will discuss emerging questions on hybrid forms of governance.

Elsewhere Online

  1. Bertil Emrah Oder, Turkeys ultimate shift to a presidential system: the most recent constitutional amendments in details, ConstitutionNet
  2. Colin PA Jones, No country for old emperors, The Japan Times
  3. Tony Blackshield, Incapable of being chosen, AUSPUBLAW
  4. George Williams, Susan Kiefel: Australia’s first female chief justice, The Sydney Morning Herald
  5. Noah Feldman, Churches Break Politics Rule All the Time. So End It, Bloomberg View
  6. Doris Toyou, International Treaty and Constitution: Contradictions of Cameroon, JURIST
  7. Gautam Bhatia, Contrapuntal Reading: Outlines of a Theory, Indian Constitutional Law and Philosophy
  8. Mark Elliot, Miller and the modern British constitution, Public Law for Everyone
  9. Stefan Theil, A Vote of Confidence for the German Democratic Order: The German Federal Constitutional Court Ruling on the Application to Ban the National Democratic Party, UK Constitutional Law Association
  10. Aleks Szczerbiak, Is Polands constitutional tribunal crisis over?, The Constitution Unit
  11. Bianca Selejan Gutan, We Dont Need No Constitution On a Sad EU Membership Anniversary in Romania, Verfassungsblog
  12. To follow news from the Conseil constitutionnel on the French presidential election, visit this page here.
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Published on February 6, 2017
Author:          Filed under: Developments
 

The Case for a Kinder, Gentler Brexit

J.H.H. Weiler, University Professor, European Union Jean Monnet Chair, New York University Law School; Co-Editor-in-Chief, International Journal of Constitutional Law

Of course, we know better than to be shooting at each other; but the post-June 23 relationship between the United Kingdom and the European Union is woefully bellicose, and increasingly so. In tone and mood, diplomatic niceties are barely maintained and in content positions seem to be hardening. I am mostly concerned with attitudes and positions of and within the Union and its 27 remaining Member States. Handling Brexit cannot be dissociated from the handling of the broader challenges facing the Union. I will readily accept that the UK leadership bears considerable responsibility for the bellicosity and the escalating lawfare. But the inequality of arms so strikingly favors the Union that its attitude and policies can afford a certain magnanimous disregard of ongoing British provocations.

It is easy to understand European Union frustration with the UK. I want to list three – the first being an understandable human reaction. It is clear that when Cameron called for a renegotiation followed by a referendum he had no clue what it was he wanted and needed to renegotiate. The Union waited patiently for months to receive his list – the insignificance of which, when it did come, was breathtaking. For “this” one was willing to risk breaking up the Union and perhaps the UK? I recall Jean-Claude Juncker’s State of the Union of 2015 in which going the extra mile in preventing a Brexit was one of his top priorities. Any fair-minded observer would agree that the Union delivered on this commitment. Some of us even thought that the eventual compromise on free movement went beyond the boundaries of extant EU law. The actual Brexit vote was thus greeted with understandable disappointment, to which a measure of bitterness and even anger were easy to detect in the myriad statements that followed. And then it also became abundantly clear, breathtakingly clear, that the UK went into the referendum without any strategic – political and legal – plan in the event of, well, Brexit. One did not know what the Brits wanted ahead of the referendum and one still is not clear what they want in its wake. It has been ongoing and at times incoherent improvisation – adding further to the already existing frustration. We tend to reify governments and administrations just as we reify courts. But when all is said and done, there are always humans with emotions and ambitions and desires and the usual frailties of the human condition.

Still, setting aside this kind of emotional state as the basis for, or even influencing, a Brexit strategy, it is well overdue. If the interest of the kids is really in one’s mind, it behooves any divorcing couple to get as quickly as possible beyond the anger stage. In approaching Brexit the single consideration should be the overall interest of the Union and the underlying values of the European construct.

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Published on February 5, 2017
Author:          Filed under: Editorials