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I·CONnect

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

ICON’s Current Issue (Table of Contents)

I·CON

 Volume 15 Issue 1

 Table of Contents

Editorial

I.CON Focus: Between International and Constitutional Law

Oddný Mjöll Arnardóttir, The “procedural turn” under the European Convention on Human Rights and presumptions of Convention compliance

Eyal Benvenisti & Alon Harel, Embracing the tension between national and international human rights law: The case for discordant parity

Gregory Messenger, The public–private distinction at the World Trade Organization: Fundamental challenges to determining the meaning of “public body”

Mario Mendez, Constitutional review of treaties: Lessons for comparative constitutional design and practice

 Articles

Robert Schertzer, Federal arbiters as facilitators: Towards an integrated federal and judicial theory for diverse states

George Papuashvili, Post-World War I comparative constitutional developments in Central and Eastern Europe

Stephen Gardbaum, Revolutionary constitutionalism

I.CON: Debate!

Maria Cahill, Theorizing subsidiarity: Towards an ontology-sensitive approach

Gareth Davies, Theorizing subsidiarity: A reply to Maria Cahill

Maria Cahill, Theorizing subsidiarity: A rejoinder to Gareth Davies

Critical Review of Governance

Ayelet Berman, Taking foreign interests into account: Rulemaking in the US and EU

Editors’ Choice of Books 2016

Richard Albert, Lech Garlicki, Tom Ginsburg

 Book Reviews

Po Jen Yap, Constitutional Dialogue in Common Law Asia (Wen-Chen Chang)

Damian Chalmers, Markus Jachtenfuchs & Christian Joerges. The End of the Eurocrats’ Dream: Adjusting to European Diversity (Maja Savevska)

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Published on March 15, 2017
Author:          Filed under: Editorials
 

What’s New in Public Law

Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

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

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

Developments in Constitutional Courts

  1. The Supreme Court of the United States ruled that sentencing guidelines are not subject to challenges under the void-for-vagueness doctrine.
  2. The European Court of Justice upheld tax rules on electronic publications.
  3. The European Court of Justice ruled against an obligation of member states to issue humanitarian visas.
  4. The Constitutional Court of South Korea officially removed President Park Geun-hye in an impeachment case.
  5. The Constitutional Court of Colombia removed a ban on working under the influence of narcotics or stimulants.
  6. The Court of Appeal of Kenya ruled that mandatory Saturday classes violate Seventh Day Adventist Church students’ freedom of religion through Sabbath observance.
  7. The Federal Constitutional Court of Germany held that foreign government officials cannot invoke German constitutional rights in seeking to enter the country for political appearances.

In the News

  1. President of the United States Donald Trump signed a new immigration executive order.
  2. The US Senate approved a bill to overturn Obama-administration land management rules.
  3. The Mechanism for International Criminal Tribunals (MICT) referred Turkey to the UN Security Council over the detention of one of its judges.
  4. The Israeli Knesset passed legislation banning entry to foreigners who knowingly call for boycotting Israel.
  5. The Hungarian Parliament passed a legislation approving the detention of asylum seekers in guarded camps.
  6. The National Assembly of Pakistan is to discuss two constitutional amendment bills.
  7. The Court of Cassation of Egypt acquitted former President Hosni Mubarak of charges related to the killing of protesters.

New Scholarship

  1. Oran Doyle, Constraints on Constitutional Amendment Powers, in Richard Albert, Xenophon Contiades and Alkmene Fotiadou (eds.), The Foundations and Traditions of Constitutional Amendment (forthcoming 2017) (arguing against the rubric of ‘unconstitutional constitutional amendments’ and exploring new ways to evaluate constraints on constitutional amendment powers)
  2. Siobhán Mullally and Claire Murray, Guest Editors, Special Issue: Regulating Abortion: Dissensus and the Politics of Rights, 25 Journal of Social & Legal Studies (2016)
  3. Adam Perry, Mercy and Caprice under the Indian Constitution, Indian L. Rev. (Forthcoming) (discussing the Indian Supreme Court’s jurisprudence on grthe powers to grant pardons and similar relief)
  4. Olivier Beaud, The Founding Constitution: Reflections on the Constitution of a Federation and its Peculiarity, 17 Jus Politicum, Thinking about Federalism(s) (2017) (developing the idea of an autonomy of the Federation as a political form that is not a State)
  5. Jau-Yuan Hwang, Ming-Sung Kuo, and Hui-Wen Chen, The Clouds Are Gathering: Developments in Taiwanese Constitutional Law, International Journal of Constitutional Law (forthcoming 2017) (providing an overview of the developments in constitutional law and politics in Taiwan for the year 2016)
  6. Rafael Domingo, Protecting Suprarationality, 74 Persona y Derecho (2016) (arguing that religion should be settled outside the secular legal system, because otherwise the secular legal system would not be truly secular)
  7. Lucas Newbill, Violating Free Speech in the War on Opioid Addiction: The Washington Legislature’s Voice in the Doctor’s Office, 52 Gonzaga Law Review (2017) (discussing a regulation adopted by the Washington legislature in reaction to the current opioid epidemic)
  8. Steven Semeraro, Interpreting the Constitution’s Elegant Specificities, 65 Buffalo Law Review (forthcoming 2017) (arguing that farsighted originalism approach in constitutional interpretation may better capture original meaning of the Constitution than other narrower forms of originalism)
  9. Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, Arizona Law Review (forthcoming 2017) (arguing that these historical arguments are flawed as an understanding of the meaning and purpose of the presidential selection system embedded in the US Constitution)
  10. Ryan Scoville, Ad Hoc Diplomats (2017) (examining the appointments process for irregular agents under the Appointments Clause of the US Constitution)
  11. Vladislava Stoyanova, Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations (2017) (comparing anti-trafficking and human rights frameworks side-by-side in a focused analysis of states’ positive rights obligations under the Council of Europe’s Trafficking Convention and Article 4 of the European Convention on Human Rights)

Call for papers

  1. The UMR International Comparative and European Law (DICE) of the Faculty of Law of Aix-Provence invites submissions for its study day on the theme of “Lawlessness” on October 13, 2017.
  2. The Department of Legal Studies, Law Program and Legal Journal of the Faculty of Law and Social Sciences of ICESI University invites for the Precedente Forum: “25 Years of the Colombian Constitutional Court,” to be held on September 21, 2017.
  3. The Walther Schücking Institute for International Law at the University of Kiel organizes a two-day workshop for PhD students and post-docs entitled “Towards Utopia – Rethinking International Law,” to be held on 19-20 August 2017. Abstracts are due by 8 May 2017.
  4. Loyola University Chicago School of Law hosts its annual Constitutional Law Colloquium in Chicago, to be held on November 3-4, 2017.
  5. The Journal of International Human Rights Law invites submissions for Issue 1 of its second volume.
  6. Utrecht Journal of International and European Law invites submissions for its 85th edition in the summer of 2017 on “General Issues” within international and European law. The submission deadline is April 18, 2017.

Elsewhere Online

  1. Giuseppe Martinico, The Asymmetric Bet of Europe, Verfassungsblog
  2. Abdujalil Abdurasulov, Kazakhstan constitution: Will changes bring democracy?, BBC News
  3. Jan Amilcar Schmidt, The Somali Constitutional Review Process. Taking Stock, ConstitutionNet
  4. Randy Barnett, Out of touch law professor criticizes Judge Gorsuch and “originalism”, The Washington Post
  5. Jonathan Somer, Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts, Blog of the European Journal of International Law
  6. Matt Reeder, State Corruption in ICSID BIT Arbitration: Can it be Estopped?, Kluwer Arbitration Blog
  7. Alonso Illueca and Sophocles Kitharidis, The impact of Morocco’s admission to the African Union on the dispute over the Western Sahara, Opinio Juris
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Published on March 13, 2017
Author:          Filed under: Developments
 

Five Questions with Gráinne de Búrca

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 Gráinne de Búrca, currently co-president of the International Society of Public Law. Her full bio follows below:

Gráinne de Búrca joined the NYU Law faculty in 2011. Before joining NYU, she held tenured posts as professor at Harvard Law School, Fordham Law School, and at the European University Institute in Florence. Before that, she was Fellow of Somerville College and lecturer in law at Oxford University from 1990 to 1998. She was deputy director of the Center for European and Comparative law at Oxford University, and co-director of the Academy of European Law at the EUI in Florence. She has also been a visiting professor at Columbia Law School, a member of NYU’s Global Law faculty and Straus Inaugural Fellow at NYU.

Her main field of research and expertise is European Union law, and she has written widely on questions of European constitutional law and governance, human rights and discrimination, and international relations. She studied law at University College Dublin and the University of Michigan and was admitted to the bar at Kings Inns, Dublin. She is co-editor of the Oxford University Press series Oxford Studies in European Law, and co-author of the leading OUP textbook EU Law, currently in its sixth edition. She is co-editor-in-chief of the International Journal of Constitutional Law (I•CON) and serves on the editorial board of the European Law Journal and the Journal of Common Market Studies, and on the advisory board of numerous other journals.

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

I have been working for a while on a project concerning the uneven use of European Union anti-discrimination legislation in national courts.  I am trying to find an explanation (or explanations) for the paucity of cases being referred to the European Court of justice dealing with issues of racial and religious discrimination, despite the existence of robust EU anti-discrimination legislation in these fields for over 14 years, and despite there being no shortage of conflicts arising on these issues.

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

Oddly, I find that I write best whenever I am busiest with other issues (teaching, administration, conference travel etc).  Pressure helps me to write.  In theory I would like to think I am most productive while on sabbatical leave or during the vacations between semesters, but the reality is that I write most effectively when I have real deadlines.  And I need to be disconnected from the internet when I write!  Otherwise, no particular routine.

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

There are quite a number of authors whose work I always value reading, but it seems invidious or arbitrary (and maybe ill-advised!) to single out any one.

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?

Robert Keohane’s book After Hegemony was an important work for me, and Joseph Weiler’s article “The Dual Character of Supranationalism” first led me to become really interested in issues of European integration.

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

The turbulent state of the European Union today (indeed, the turbulent state of many democracies and of the global order more generally) has – despite the anxiety to which it gives rise – given rise to many important questions for scholars to address.  Apart from the obvious and compelling questions concerning the challenges to constitutional values and institutions across many jurisdictions created by the rise of illiberal populism and the election of leaders who seek to consolidate power and to remove constitutional checks and balances, there is also a series of important questions to be asked about the apparent decline in support for transnational cooperation and integration. These include questions about the conditions for successful forms of transnational integration, and the conditions under which support for such organizations weakens and declines.  The EU represents a dense and highly developed form of transnational cooperation, but a similar decline in support is evident also in the withdrawal from – or challenges mounted by  – various states and governments to a range of other international institutions and organizations.  The question of what kinds of reform to international institutions and organizations (including the EU) may be necessary for their continuation and in order for them to successfully address global and transnational problems seem both intellectually as well as practically urgent, as does the question what kind of innovative institutions or organizations might be imagined to deal with the specific challenges presented today.

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Published on March 10, 2017
Author:          Filed under: Reviews
 

Of the Politics of Resentment and European Disintegration: Are the European Peoples Ready to Keep Paddling Together? Part II

[Editor’s Note: This is Part II of a two-part series. Part I was published here on February 26, 2017.]

Tomasz Tadeusz Koncewicz, Professor of Law and Director of the Department of European and Comparative Law at the University of Gdańsk, Poland*

As I have argued in Part I of this series, the “politics of resentment” endanger the very basis of mutual trust between member states that has been defining the European project ever since its inception[1].

Mutual trust towards the other states and the community they had created acting in unison has been the cornerstone of an ethos of Europe[2]. This trust has been always built on the convergence between the fundamental values of Member States and their legal orders on the one hand, and the foundations of the Union legal order on the other. The “politics of resentment” pose the ultimate challenge to the foundations behind integration and EU membership: the commonality of liberal and democratic values and interests, agreement that the Community is more than just the sum of its parts and loyalty to the community legal order as binding on all components.

Read the rest of this entry…

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

The “C word”: Democratic Decay and the New Frontiers of Comparative Law (I-CONnect Column)

Tom Gerald Daly, Fellow, Melbourne Law School; Associate Director, Edinburgh Centre for Constitutional Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

In a recent I-CONnect blog post of 18 February,[1] Mikołaj Barczentewicz referred to developments in 1950s South Africa to assess the threat of a “looming split” in the Polish constitutional order stemming from the potential for resistance by lower courts to the judgments of the Polish Constitutional Tribunal, which has been “captured” by the ruling Law and Justice (PiS) party in the context of ongoing democratic decay – a phenomenon which I have been loosely defining as the incremental degradation of the structures and substance of liberal constitutional democracy.[2] Four days later, my fellow I-CONnect columnist Asli Bâli wrote a compelling piece on “comparative law in the Age of Trump.”[3] Both posts raise two key questions: how is democratic decay worldwide expanding the frontiers of comparative law? And just how useful is comparative analysis in furthering our understanding of this phenomenon?

Comparative law―the ‘C word’, as Ran Hirschl so memorably calls it[4]―has clearly acquired a new urgency in the current climate. For those of us seeking a broad global perspective on democratic decay, it means delving into the constitutional systems of states as diverse as Hungary, Brazil, Poland, the Philippines, the Netherlands, South Africa–and, in more recent times, the US. Comparative enquiry is, of course, perennially bedevilled by the question of comparing like with like, and whether we can ever fully understand the inner workings of another system from our own vantage point. To some extent, we are faced with the same old practical questions, such as the capacity to speak the language of the countries under analysis–for Anglophones in particular it is harder to get a handle on the detail of systems outside the Anglosphere. We rely heavily on Polish and Hungarian scholars, for instance, to convey the reality of democratic decay in those states, and the role public law plays as both bulwark and catalyst of such decay.[5] The threat of decay is also shining a light on venerable constitutional systems that are often overlooked: we rely on Dutch constitutional scholars, for example, to assess whether Geert Wilders presents a real threat to democracy in the Netherlands.[6]

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Published on March 8, 2017
Author:          Filed under: Analysis
 

Installation Lecture of Mark Graber as Regents Professor at the University System of Maryland

Richard Albert, Boston College Law School

Please join I-CONnect in congratulating Professor Mark Graber on his installation as Regents Professor at the University System of Maryland (USM), one of only seven in the history of the USM.

Last week, Professor Graber delivered his installation lecture before an audience of family and friends, in addition to many professors and students of law and political science who had traveled to Baltimore for the occasion from Canada, England, Israel, Turkey and across the entire United States.

The induction ceremony is now online and available here. It features a tour-de-force lecture from Professor Graber, preceded by introductory remarks from Dean Donald Tobin.

Professor Mark Graber was formerly the Jacob A. France Professor of Constitutionalism. A graduate of Columbia, Dartmouth and Yale, Professor Graber has published dozens of important works in constitutional history, law and politics. His official bio follows below:

Professor Graber held a faculty position in the Department of Government and Politics at the University of Maryland, College Park from 1993-2007 and taught at the University of Maryland School of Law as an adjunct professor beginning in the fall of 2002. In 2004, he was appointed Professor of Government and Law at the School of Law, a title he held until May 1, 2015 at which time he received an appointment as the Jacob A. France Professor of Constitutionalism. In 2016, he was named Regents Professor, one of only seven Regents Professors in the history of the University System of Maryland and the only Regents Professor on the UMB campus. He served as associate dean for research and faculty development from 2010 to 2013. He has also been one of the organizers of the annual Constitutional Law “Schmooze”, which attracts scholars from across the country to the law school.

Professor Graber is recognized as one of the leading scholars in the country on constitutional law and politics. He is the author of A New Introduction to American Constitutionalism, forthcoming in 2013 from Oxford University Press, and co-editor (with Keith Whittington and Howard Gillman) of American Constitutionalism: Structures and Powers and American Constitutionalism: Rights and Powers, both also from Oxford University Press. He is presently working on Forged in Failure, a book that will examine how much constitutional change in the United States has been caused by the failure of constitutional practices to function as expected.

Professor Graber is also the author of scores of articles, including “The Non-Majoritarian Problem: Legislative Deference to the Judiciary” in Studies in American Political Development, “Naked Land Transfers and American Constitutional Development”, published in the Vanderbilt Law Review and “Resolving Political Questions into Judicial Questions: Tocqueville’s Aphorism Revisited”, published by Constitutional Commentary.

During fall 2013, he was a visiting faculty member at the University of Virginia School of Law.

Professor Graber is a dear friend of I-CONnect and a regular participant at the annual ICON-S Conference. Friends of I-CONnect around the world will have the opportunity to congratulate Professor Graber in person at the ICON-S Conference in Copenhagen this coming July, if not sooner.

We are grateful to Professor Graber for all he has done for the community of public law scholars, and we congratulate him on this tremendous honor.

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Published on March 7, 2017
Author:          Filed under: Developments
 

I-CONnect Global Symposium: Five Perspectives on the Brazilian Abortion Ruling

Richard Albert, Boston College Law School

Last month, we announced that I-CONnect would host a special symposium on a recent abortion decision in Brazil. In an historic ruling for the region, the First Chamber of the Supreme Court of Brazil held that a criminal prohibition on procuring an abortion before the end of the first trimester violates the fundamental rights of women as well as the principle of proportionality.

Writing for the majority, Justice Luís Roberto Barroso wrote that “women bear alone the integral burden of pregnancy.” He continued: “Therefore there will only exist gender equality if women have the right to decide whether to continue a pregnancy or not.”

Today we are pleased to publish a special global symposium on this abortion ruling. The symposium features comments from scholars around the world on this controversial and important decision–controversial because the Court split 3 to 2 and the judgment has stirred much debate among lawmakers, and important because the judgment has broken new ground in the region.

First, immediately below, we publish the syllabus of the case. The full judgment, translated into English, is available here: Brazilian Abortion Ruling–Translation. We then publish comments from the following scholars:

  1. Rebecca J. Cook and Bernard M. Dickens, both of the Faculty of Law at the University of Toronto;
  2. Chao-ju Chen, National Taiwan University College of Law;
  3. Grégor Puppinck, Director of the European Centre for Law and Justice in Strasbourg, France;
  4. Debora Diniz from the University of Brasilia and NYU Law School, and Christine Ricardo from the Yale Law School; and
  5. Rachel Rebouché, Temple University Beasley School of Law

We thank Justice Barroso and his Chambers for generously providing, at our request, the syllabus and translation for his majority opinion in this case. 

Read the rest of this entry…

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Published on March 7, 2017
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Call for Abstracts: Public Law and the New Populism

–Daniel Francis, International Journal of Constitutional Law

The International Journal of Constitutional Law (I-CON) is pleased to announce a call for abstracts for a workshop on “Public Law and the New Populism” to take place at NYU School of Law on September 15, 2017.  The workshop will be co-hosted by the Jean Monnet Center for International and Regional Economic Law & Justice at NYU.

The focus of the workshop will be on the relationship between the current populist turn in national and international politics, on the one hand, and legal norms and institutions on the other.  The aim is to bring together constitutional, international and public law scholars to investigate some of the distinctively legal dimensions of the populist wave sweeping the world’s democracies.  Each paper will be presented and discussed by an assigned commentator and other participants.  Following the workshop, there may be an opportunity for a subset of the papers to be submitted to the I-CON journal as a proposed symposium issue.

Abstracts of between 250 and 750 words should be submitted on or before March 31, 2017, by email to Daniel Francis at daniel.francis@law.nyu.edu, with “Populism Workshop Submission” in the subject line.  Final papers will be due by August 15, 2017.  We hope to attract a genuinely diverse group of scholars in all respects.  We particularly welcome proposals which address of one or more of the following questions:

  1. One phenomenon or several?  What might be the shared or unifying dimensions, if any, of the challenges presented to constitutional and public law and institutions by the recent populist turn across the US, Europe, and parts of Asia?  Are there common problems and questions across jurisdictions or are these different and distinct phenomena?   Are they similar or different to those raised by earlier populist movements in Latin America and elsewhere?
  2. Which elements of the constitutional order are under strain?  Populist movements and populist leaders can present new challenges for the norms and institutions of public law: which aspects or elements of the constitutional and legal order will face the greatest strain in this new chapter of political history?
  3. Public law as a cause?  Does the rise of populism reflect a backlash against a systematic neglect of non-elite interests in or from constitutional and international law processes?  Have aspects of public law or its application played a role in bringing about this rise?
  4. Public law’s response.  Does (or should) the substance or application of public law — including its norms and its institutions — adapt in any ways to accommodate the phenomenon of populist politics?  Can (or should) public law become a point of resistance during periods of populist politics?  What are the implications of the populist turn for courts and the judiciary?
  5. What about international and transnational public law?  Can (or have) international or transnational legal norms and institutions responded in adequate ways to the strongly nationalist dimension of the populist turn?  Do international legal norms and institutions have a legitimate role to play in shaping, constraining, or reinforcing domestic political processes at such times?  More generally, what are the implications of the populist turn for law and legal institutions beyond the nation-state?
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Published on March 6, 2017
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What’s New in Public Law

–Angélique Devaux, Cheuvreux Notaires, Paris, France, Diplômée notaire, LL.M. Indiana University Robert H. McKinney School of Law

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

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

Special Announcement: ICON-S Mexican Chapter

We are happy to announce the establishment of the ICON Mexican Chapter founded by Micaela Alterio (professor of constitutional law at ITAM) and Roberto Niembro (clerk at the Mexican Supreme Court). The aim of the Mexican Chapter is to pursue the mission of ICON-S within Mexico and to promote the objectives and the values of ICON-S. In particular, the commitment to an inter-disciplinary approach to public law that engages constitutional, administrative and international law scholars and practitioners so as to better understand global and transnational legal developments. This year the Mexican Chapter will organize a national conference focus on the hundred-year-old Mexican Constitution with the participation of distinguished scholars, judges and governmental officials. Further information will be published soon. We encourage interested scholars and practitioners to become part of this new project. For more information, please contact Ana Micaela Alterio (malterio@iconmexicanchapter.org, ana.alterio@itam.mx) or Roberto Niembro (rniembro@iconmexicanchapter.org).

Developments in Constitutional Courts

  1. The Federal Administrative Court in Leipzig, Germany ruled in favor of “the right for a patient who is suffering and incurably ill to decide how and when their life should end” provided the patient “can freely express their will and act accordingly.”
  2. The Constitutional Court of Croatia ruled that the Yugoslav abortion law allowing a woman to terminate up to the 10th week of pregnancy does not breach the Constitution, but that the Parliament should pass a new and more detailed abortion legislation within two years.
  3. The Supreme Court of Nigeria declared free and compulsory basic education up to Junior Secondary School as an enforceable right for every child.
  4. The UK Supreme Court upheld the Government’s £18,600 income threshold that bars British workers’ foreign spouses entry into the UK, but judges also admitted it will continue to cause “significant hardship” for thousands of couples.
  5. The Supreme Court of India refused to allow abortion of a 23-week-old foetus although the foetus was diagnosed to suffer from Down syndrome.
  6. The High Court of Zimbabwe banned corporal punishment for children both at home and at school.
  7. The Constitutional Court of Uganda nullified all its prior interim orders not issued by a panel of five justices. Interim orders have been conventionally issued by a single justice.

In the News

  1. Catalonia prepares to vote in a referendum on independence from Spain this September.
  2. The Texas Supreme Court hears a challenge on same-sex marriage rights.
  3. The US Supreme Court declined hearing a direct challenge to the constitutionality of the death penalty as cruel and unusual punishment.
  4. The EU Parliament adopted a resolution on measures to temporarily introduce visas for American citizen.
  5. The US President Trump signed a bill to reauthorize the use of guns for mentally ill persons.
  6. Mexico amended articles 107 and 123 of the Constitution of the United Mexican States that deal with labor proceedings and collective bargaining.
  7. The Gambian Parliament removed the constitutional age limit on presidential elections candidates.
  8. The Constitution of Moldova was for the first time translated in the eight languages of ethnic minority groups, as well as in Braille alphabet.

New Scholarship

  1. Farrah Ahmed, The Autonomy Rationale for Religious Freedom, 80 The Modern Law (2017) (focusing on two tensions which have unappreciated implications for religious freedom jurisprudence, particularly that of the ECHR)
  2. Mohamed Arafa, The Prohibition of Wearing Veil in Public Schools in Egypt: An Analysis of the Egyptian Supreme Constitutional Court jurisprudence, Revista De Investigacoes Constitutionais, 4 Journal of Constitutional Research (2017) (examining the decision of the Supreme Constitutional Court of Egypt that upheld the prohibition on wearing veil in public schools)
  3. Eoin Carolan, Leaving Behind the Commonwealth Model of Rights Review: Ireland as an Example of Collaborative Constitutionalism (2017) (developing a model of collaborative constitutionalism as an alternative to conventional models of constitutional review)
  4. Lorne Neudorf, Taking Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern Approach to Statutory Interpretation, Statute Law Review (2017) (proposing a principled approach to enhance the value and legitimacy of the use of foreign law by the Supreme Court of Canada)
  5. Lorne Neudorf, The Dynamics of Judicial Independence: A Comparative Study of Courts in Malaysia and Pakistan (2017) (examining the principle of judicial independence in a comparative perspective)
  6. Neil C Weare, Equally American: Amending the Constitution to Provide Voting Rights in U.S. Territories and the District of Columbia, 46 Stetson Law Review (2017) (proposing a voting rights amendment to the US Constitution that would provide full political participation and representation to citizens living in the Territories and the District of Columbia)
  7. David Stratas, The Canadian Law of Judicial Review: Some Doctrine and Cases (2017) (providing an up-to-date summary of the Canadian law of judicial review)
  8. Jaakko Husa, Hindu Law – Stateless Law?, 62 Scandinavian Studies in Law (2017) (discussing Hindu Law as a form of global law or law without the State)
  9. Tobias Lock, The Influence of EU law on Strasbourg Doctrines, European Law Review (2107 forthcoming) (identifying the distinct areas of influence of the EU law on doctrines of the European Court of Human Rights)

Calls for Papers and Announcements

  1. The European Commission Erasmus Program on “Parliamentary Procedures and Legislative Drafting” (EUROPADRA) invites applications for its joint Masters are open. Application deadline is 13 March 2017.
  2. Graz Jurisprudence at the Faculty of Law, University of Graz invites applications for two university Assistants without doctorate. German language skills are not required. Application deadline 22 March 2017.
  3. The European Law Institute invites submissions for its inaugural ELI European Young Lawyers Award. The deadline for submissions is 30 April 2017.
  4. The Center for Ethics and Law of the Life Science, the Human Rights Center, and Law and Global Justice of Durham Law School invite submission for a two-day conference on the topic “Defending Individual Rights,” to be held in Durham on 8-9 Mar 2017.
  5. The University of Otago invites submission and panel proposals for its conference to be held on 6-9 December 2017 in New Zealand.
  6. Curtin Law School invites submissions for its XIV Annual Australian Property Law  Teachers Conference on “Beyond Sole Ownership,” to be held on September 27-28, 2017.
  7. The University of Richmond School of Law invites proposal for its inaugural Mid-Atlantic Junior Faculty Forum in Richmond, VA, on May 10-11, 2017.
  8. The Italian Society of International Law and European Law invites submissions for its XXII Annual Conference on “Migration and International Law: Beyond the Emergency?” to be held on June 8-9, 2017.
  9. The Institutions and International Law in Eastern Europe, Leibniz Institute for the History and Culture of Eastern Europe invites submissions for a workshop to be held on 28-29 September, 2017.
  10. Nova Law School invites submissions for its conference on “The Federal Experience of the European Union,” to be held on May 22-23, 2017. The deadline for submission of abstracts is April 1, 2017.

Elsewhere Online

  1. Adam Liptak, A Constitutional Right to Facebook and Twitter? Supreme Court Weighs In, The New York Times
  2. Nikos Skoutaris, Limiting the Constitutional Space of Scotland and Northern Ireland, Verfassungsblog
  3. Ruthann Robson, Florida State Judge Grants Writ of Habeas Corpus to Immigration Detainee on Tenth Amendments Grounds, Constitutional Law Prof Blog
  4. Thomas Verellen, Opinion 3/15 on the Marrakehs Treaty: ECJ Reaffirms Narrow ‘Minimum Harmonisation’ exception to ERTA principle, European Law Blog
  5. Linda Greenhouse, Outsourcing the Constitution, The New York Times
  6. Catherine Bond, Constitutional and community aspects of flag burning in Australia, AUSPUBLAW
  7. Laura Cahillane, The Resurrection of Tribunals in Ireland? Some Preliminary Thoughts on the Disclosures Tribunal, Constitution Project
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Published on March 6, 2017
Author:          Filed under: Developments
 

Five Questions with Allan Hutchinson

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 Allan Hutchinson, Professor of Law at Osgoode Hall Law School. His full bio follows below:

A member of Osgoode’s faculty since 1982, Professor Allan Hutchinson served as Associate Dean from 1994 to 1996 and later, in 2003, he was named Associate Dean (Research, Graduate Studies and External Relations). Professor Hutchinson is a legal theorist with an international reputation for his original and provocative writings. He was elected to the Royal Society of Canada in 2004 and named a Distinguished Research Professor by York University in 2006.  His research interests are law and politics; legal theory; the legal profession; constitutional law; torts; jurisprudence; civil procedure; and racism and law. As well as publishing in most of the common-law world’s leading law journals, he has written or edited many books. Much of his work has been devoted to examining the failure of law to live up to its democratic promise. His latest publications are Evolution and the Common Law (Cambridge University Press, 2005) and The Companies We Keep: Corporate Governance for a Democratic Society (Irwin Law, 2006). In 2007, he received the University-wide Teaching Award and was a Visiting Professor at Harvard Law School.

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

I am pulling together essays–old, new and revised–as part of a project entitled “Too Late to Stop Now: Life, Law and Lore.”  It is an effort to see the connecting threads, if any, in my work. I want to take seriously my own challenge to others to look “where they stand” and to examine the link between (auto)biography and scholarship.

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

Whenever I get the chance. No routine really other than me, my laptop and the music of Van Morrison.

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

I suppose it has to be Richard Posner–he is never less than provocative in all the right ways. I try to keep up with new twists and turns in legal theory.

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?

No question, it was by “What is History?” by Edward Hallet Carr. I was given it by a high school teacher and its theme that what you see depends on why you look and where you stand has influenced and shaped my approach to law, teaching and scholarship. There is no “view from nowhere” and any claim to appropriate that is misleading and often self-serving.

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

Why do we keep asking “what is law?”? Trying to understand that project and why it has such a tenacious hold on the jurisprudential imagination remains top of the list. It is much better to generate and answer a very different set of practical questions about law, justice and their workings–legal theory is simply another form of situated practice.

BONUS Question

6. Do you have any advice to share with younger scholars in public law, say a doctoral candidate or a junior faculty member?

Avoid perfectionism, know that your views will change, treat writing as a daily practice, and never read one more piece simply to put off writing.

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Published on March 3, 2017
Author:          Filed under: Reviews