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I·CONnect

Blog of the International Journal of Constitutional Law

Constitutions, Science, and COVID: Does Constitutional Protection of Science and Health Predict Pandemic Outcomes?

Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

Those of us who study constitutions (especially in a comparative approach) are bound to wonder about the extent to which constitutional law might relate to the relative success that states have experienced in confronting the ongoing COVID-19 pandemic. Perhaps the matter is worthy of a deeper engagement, but I can provide at least a shallow investigation of it here. In the paragraphs that follow, I explore the extent to which giving constitutional standing to rights relating to health and science are connected to success in combating the pandemic.

I would argue that the responses to the pandemic implicate at least three rights that are found in many constitutions. The first and most obvious is the right to health or the right to healthcare. This is a very common feature of constitutions, and is included in 102 of the 192 constitutions for which we have data for 2020 from the Comparative Constitutions Project (CCP). The extent to which the inclusion of this right in a constitution impacts the lived reality of citizens has received significant attention from scholars, including in legal, economic, and medical journals, and most recently in a forthcoming book by Adam Chilton and Mila Versteeg. At a more practical level, a number of constitutions also provide for the right to healthcare that is provided by the government free of charge (41/192). One would expect this constitutional provision in particular to be associated with better outcomes in combatting the virus.

However, the varying responses to the pandemic also bring new relevance to a less-commonly studied right found in many constitutions: the right to enjoy the benefits of science. The history and functions of the right to enjoy the benefits of science is explored in a forthcoming article in the Max Planck Encyclopaedia of Comparative Constitutional Law by Cesare Romano and Andrea Boggio. They highlight the fact that this is one of the oldest international human rights, as it was protected in the American Declaration of Rights and Duties of Man (1948, Article XIII) and the Universal Declaration of Human Rights (1948, Article 27.1). Romano and Boggio suggest that the formulation that has been most linguistically influential is from the International Covenant on Economic, Social and Cultural Rights (1966, Article 15.1, b), which protects the rights of individuals “To enjoy the benefits of scientific progress and its applications.” As of 2020, the CCP finds this right in 21 constitutions, while a full 133 make some kind of mention of science or research.

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Published on July 29, 2020
Author:          Filed under: Analysis
 

Video Now Available — ICON•S Live Event — The Gendered Impact of the COVID-19 Pandemic: Public Law Scholarship, Perspectives and Values


–The Editors

COVID-19 has inflicted serious damage on the health, social and economic well-being of citizens worldwide. But that damage has not been evenly distributed: it has affected some countries and regions far more than others, and has had distinctly racialized and gendered impacts. In this webinar, we focus in particular on the gendered impacts of the pandemic – on its impact on the capacity to combine care and work, and the resulting gendered impacts in public law scholarship. At the same time, we consider the ways in which the pandemic has created new ways of thinking about work, especially flexible work, which open up the possibilities of a new more gender-equal society, economy and academy. The webinar will feature a panel discussion led by Grainne de Burca and Rosalind Dixon, and which draws on the diverse perspectives of leading female-identifying members of the Society, as well as experts on gender and economic policy, including Michaela Hailbronner, Ruth Rubio Marin, Marcela Prieto Rudolphy, Iyiola Solanke, Betsey Stevenson and Julie Suk.

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Published on July 28, 2020
Author:          Filed under: Developments
 

Five Questions with Olivia Tambou


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


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

This edition of “Five Questions” features a short video interview with Olivia Tambou, Associate Professor of Public Law at Paris-Dauphine University.

Asked to identify her most meaningful publication among the ones she has authored, she selected Manuel de droit européen de la protection des données à caractère personnel, published just this year.

Professor Tambou is currently organizing a major e-conference on “Data Protection and Covid-19: Comparative Perspectives.” Interested persons may email her directly here: blogdroiteuropeen@gmail.com.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com. We welcome all nominations. We are especially eager to receive nominations of early-career scholars and women.

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Published on July 28, 2020
Author:          Filed under: Reviews
 

Why Replacing the Brazilian Constitution Is Not a Good Idea: A Response to Professor Bruce Ackerman

Thomas da Rosa Bustamante, Emilio Peluso Neder Meyer, Marcelo Andrade Cattoni de Oliveira, Federal University of Minas Gerais; Jane Reis Gonçalves Pereira, Rio de Janeiro State University; Juliano Zaiden Benvindo and Cristiano Paixão, University of Brasília

In a provocative piece that was first published in Portuguese and then in an English version on ICONnect, Professor Bruce Ackerman not only suggests the need for a new Brazilian constituent assembly, but also sets a date for it: 2023. His first words are strong: “Brazil needs a new Constitution,” a statement that is visibly an invitation for further discussions. His arguments are largely based on specific facts of the Constituent Assembly that resulted in the 1988 Brazilian Constitution, the most democratic ever in the history of the country, and the developments thereafter. His central claim is that “increasing numbers of Brazilians are losing faith in the system established in 1989”, and thereby “the best way to respond to escalating political alienation is to convene a new Constituent Assembly in 2023.” What could sound logical and plausible given the current political crisis catalyzed by Bolsonaro’s disastrous presidency – let alone the economic and health tragedy due to COVID-19 – is, however, made more nuanced and challenged by key facts of Brazilian constitutional history, longstanding discussions of Brazil’s constitutional identity, and cost-benefit analyses. This response aims to address some of those variables. We argue that the Brazilian situation, although extremely problematic, is not likely to be changed for the better with a new constitution.

Professor Ackerman assumes from the outset that the 1988 constitutional project has failed, and that “key decisions by the Assembly of 1988” laid the groundwork for the current public confidence crisis. He offers a historical recollection of events during the Constituent Assembly of 1987-1988, classifies the 1988 Constitution as a “compromise constitution,” describes some of the successive and mostly successful presidencies, depicts an assumed “popular demoralization” in 2020, and even proposes that the “Constituent Assembly of 2023” should adopt a parliamentary system.  In this subject matter, Ackerman follows his long defense of “constrained parliamentarism” as a “more promising path to constitutional development”[1] than presidentialism. 

 Yet, there are some serious difficulties in the claim that Brazil’s 1988 constitutional project has failed. Although Professor Ackerman acknowledges the relevance of various social movements during the Constituent Assembly, the emphasis on the negative dimension of compromises during that moment seems to follow a tradition of political scientists, especially from the 1980-1990s, who depicted the 1988 Constitution as a typical compromise constitution,[2] also arguing in favor of parliamentarism[3]. However,  current historiographic studies have pointed out that the emphasis on compromises and bargains is very partial and simplify that constitutional moment to a large extent.[4]  Such studies prompt, at least, two caveats. First, compromises are not necessarily problematic for constitutional legitimacy and they can even engender constitutional stability[5]  and resilience.[6] Second, the 1988 Constitution carries a history of democratic engagement that goes way beyond that specific constitutional moment. Though the Constituent Assembly took place between February 1, 1987 and October 5, 1988, the drafting of the Constitution, from different angles, is much longer and is anchored in the expressive effort by Brazilian society to overcome the military dictatorship (1964-1985).

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Published on July 28, 2020
Author:          Filed under: Analysis
 

What’s New in Public Law


Claudia Marchese, Research Fellow in Comparative Public Law at the University of Florence (Italy)

Developments in Constitutional Courts

  1. In an order of 27 May 2020, the First Senate of the German Federal Constitutional Court declared unconstitutional § 113 of the Telecommunications Act and several ordinary federal laws on the grounds that, enabling security authorities to obtain information from telecommunications enterprises, these provisions violate the right to informational self-determination and the right to the privacy of telecommunications (Art. 10(1) of the Basic Law (Grundgesetz – GG).
  2. In Croatia Covid-19 patients were allowed to vote by proxy in the parliamentary elections held on 5 July 2020 after the Constitutional Court stated that the State Electoral Commission has the duty to ensure the possibility to exercise the right to vote to all citizens, including Covid-19 patients.
  3. On 14 July 2020 the Austrian Constitutional Court declared unconstitutional certain provisions introducing restrictions on access to public places provided by the Covid- 19 Measures Act.
  4. U.S Supreme Court declined to overturn a federal appeals court’s decision that blocked Florida felons’ eligibility to participate in election until they have repaid all fines and fees they own.
  5. The Italian Constitutional Court, through the Order no. 132/2020, postponed deciding a question concerning the custodial sentence envisaged for libel to provide the Legislator with an opportunity to approve a new legislation regarding the balance between freedom of press and protection of reputation.

In the News

  1. On 21 July 2020 it was reached an agreement, at the end of the special meeting of the European Council, concerning the Multiannual Financial Framework (MFF) and a specific Recovery effort under Next Generation EU (NGEU).
  2. On 3 July 2020, Russian Federation President Vladimir Putin signed Decree No. 445 “On the Official Publication of the Constitution of the Russian Federation, as Amended”. The 206 amendments to the Constitution cover a wide range of issues.
  3. On 18 June 2020, the German parliament passed a reform which extends Network Enforcement Act (NetzDG) by placing a reporting obligation on social network platforms which requires them to report certain types of “criminal content” to the Federal Criminal Police Office.
  4. On 21 July 2020 the Turkish ruling Justice and Development Party (AKP) presented to Parliament a bill that introduce severe restrictions on social media and internet freedoms in the country. The bill was passed by the Justice Committee of Turkey’s parliament on 24 July.
  5. German state of Baden Wuerttemberg has banned burqas and face veils in schools on the reason that they would not belong to a free society.

New Scholarship

  1. R. Albert, America’s Amoral Constitution (explaining that the United States Constitution derives its legitimacy not from morality but from a peculiarly amoral code rooted in outcome-neutrality)
  2. A. Baraggia, C. Fasone, L.P. Vanoni (eds.), New Challenges to the Separation of Powers (forthcoming 2020) (This book guides readers through the transformation of the separation of powers in national contexts).
  3. S. Bartole, The Internationalisation of Constitutional Law. A View from the Venice Commission (2020) (This book illustrate the work of the Venice Commission to show how constitutional law in Europe  has become increasingly borderless).
  4. H. Krunke, B. Thorarensen, The Nordic Constitutions. A comparative and Contextual Study (2020) (This volume analyses the Nordic constitutional systems of Denmark, Finland, Iceland, Norway and Sweden in a comparative context).
  5. Klodian Rado, The use of non-domestic legal sources in Supreme Court of Canada judgments: Is this the judicial slowbalization of the court?, Utrecht Law Review, 2020, 16(1) (This article examines all the 1223 judgments issued by the SCC between 2000 and 2016 and offers a comprehensive picture of citations of all forms of non-domestic legal sources).
  6. C. Fasone, D. Gallo, J. Wouters, Re-connecting Authority and Democratic Legitimacy in the EU: Introductory Remarks, European Papers, 2020, Vol. No. 5, No 1 (This article analyses the relationship between authority and democratic legitimacy in the European Union).
  7. Juan C. Herrera, La idea de un derecho común en América Latina a la luz de sus críticas prácticas, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2020-25 (This study deepens the idea of a Common Law in Latin America, focusing on the practical scope and the challenges faced by the region in moving from the national to the supranational sphere).
  8. R. Ibrido, C. Marchese, Integration policies, practices and experiences: Italy Country Report, Respond Working Paper 2020/54, June 2020 (This work explores the Italian model of integration by looking at the legal, political and institutional framework. It deepens five thematic topics: labour market, education, housing and spatial integration, psychosocial health, citizenship, belonging and civic participation).

Calls for Papers and Announcements

  1. The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the Solomon Center for Health Law and Policy at Yale Law School announce a call for abstracts concerning “COVID-19 and the Law: Disruption, Impact, and Legacy” with the aim of examining the COVID-19 pandemic from several perspectives, but especially focusing on its relationship with health law and policy. The authors of selected papers will be invited to present their work at a virtual conference. The deadline to submit abstracts is 14 August 2020.
  2. An international and pluri-disciplinary symposium concerning “Coronavirus – Covid-19 Constitutional, political and social threats and challenges in France and the United Kingdom” will be hosted by the Panthéon-Assas University (Paris – France) on 27 May 2021 and the Centre for British Politics and Government, King’s College (London – UK), on 10 June 2021. The deadline for proposals is 15 September 2020.
  3. The theme of the 9th Law and Economic Conference, organized by the University of Lucerne together with the University of Notre-Dame at the University of Lucerne on 16-17 April 2021, will be “Law and Economics of the 2020 Coronavirus Crisis”. To submit a paper for this conference, you are kindly requested to send a proposal (1-2 pages) and a short CV no later than 15 September 2020.
  4. The EULab – Summer School on Labour Migration in the European Union, in cooperation with the Institute for Research on Innovation and Services for Development of the National Research Council of Italy (IRISS-CNR), promotes a call for papers concerning: “Labour Migration in the time of COVID-19: Inequalities and Perspectives for Change”. The deadline for the submission of abstracts is 30 September 2020.
  5. The University of Trento and the Centre for Religious Studies at Bruno Kessler Foundation are organizing a workshop on the legal recognition of non-traditional families, “A shared interest in family legal pluralism: The potential of constructive alliances between religious and queer groups“, to be held virtually on September 18, 2020. Registration is mandatory.
  6. The Oxford Seminars in Jurisprudence invite papers on topics related to the philosophy of law. It is possible to submit fully anonymised papers (less than 12,000 words, footnotes included), within 10 August 2020. Papers will be selected by members of the University of Oxford legal philosophy group based on blind review.

Elsewhere Online

  1. D. R. Cameron, After five-day marathon, EU leaders agree on €750 billion recovery plan, Yale MacMillan Centre.
  2. T. Besley, S. Dray, Free media help combat the spread of COVID -19, LSE blog.
  3. A. Carlà, A new kind of insecurity: how the pandemic has affected minorities, LSE blog.
  4. A. Jakab, Moral Dilemmas of Teaching Constitutional Law in an Autocratizing Country, Verfassungsblog.
  5. M. Hailbronner, R. Rubio Marín, Parity laws in Germany – Caving in to Gender Backlash or Consolidating Women’s Citizenship Status?, Verfassungsblog.
  6. Jeffrey Omari, Undercutting Internet Governance in Brazil, Verfassungsblog.
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Published on July 27, 2020
Author:          Filed under: Developments
 

Mark Tushnet Prize in Comparative Law–Call for Nominations


The AALS Section on Comparative Law is pleased to announce the second year of the “Mark Tushnet Prize” to recognize scholarly excellence in any subject of comparative law by an untenured scholar at an AALS Member School.

The Prize will be given to the author(s) of a scholarly article judged to have made an important contribution in the field of comparative law. This article must have been published in an academic journal between July 1, 2019 and June 30, 2020.

The Prize was awarded for the first time at the 2020 AALS Annual Meeting. It will be awarded every year thereafter at the January AALS Annual Meeting. All untenured scholars—including but not limited to tenure-track professors, visiting assistant professors, lecturers, academic fellows, doctoral candidates—are eligible.

Nominations for the 2021 Prize should be sent by email to Kristi Longtin (kristi.longtin@drake.edu) by no later than 12:00pm Central Time (U.S.) on August 3d, 2020. Nominations should include the full name, institutional affiliation, and contact information for the nominated scholar, in addition to a PDF version of the published article to be considered for the Prize. Self-nominations are welcomed.

For all questions, please contact Professor Mark Kende (mark.kende@drake.edu), Chair of the AALS Section on Comparative Law.

Prize Committee

  • Mark Kende (Drake, Chair)
  • Richard Albert (Texas)
  • Penelope Andrews (New York Law School)

About Mark Tushnet

Mark Tushnet, a former president of the Association of American Law Schools, is the William Nelson Cromwell Professor of Law at Harvard Law School. A former law clerk to Justice Thurgood Marshall, Tushnet is an authoritative voice in constitutional law and theory. His scholarship spans all areas of public law, including comparative constitutional law, a field in which he has co-authored a leading casebook. A respected teacher, a devoted mentor, and an influential scholar, he retired from the Harvard faculty in June 2020.

About the AALS

The Association of American Law Schools (AALS) is a 501(c)(3) nonprofit association of 179 law schools. Its members enroll most of the nation’s law students and produce the majority of the country’s lawyers and judges, as well as many of its lawmakers. The mission of AALS is to uphold and advance excellence in legal education. In support of this mission, AALS promotes the core values of excellence in teaching and scholarship, academic freedom, and diversity, including diversity of backgrounds and viewpoints, while seeking to improve the legal profession, to foster justice, and to serve our many communities–local, national, and international. Founded in 1900, AALS also serves as the learned society for the more than 9,000 law faculty at its member schools, and provides them with extensive professional development opportunities, including the AALS Annual Meeting which draws thousands of professors, deans and administrators.

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Published on July 24, 2020
Author:          Filed under: Developments
 

Announcement: ICON-S Forum on Gender and Public Law, and Webinar on the Gendered Impact of the COVID-19 Pandemic on Public Law Scholarship, July 22

The Gendered Impact of the COVID-19 Pandemic: Public Law Scholarship, Perspectives and Values – Webinar


MEETING DESCRIPTION:
COVID-19 has inflicted serious damage on the health, social and economic well-being of citizens worldwide. But that damage has not been evenly distributed: it has affected some countries and regions far more than others, and has had distinctly racialized and gendered impacts. In this webinar, we focus in particular on the gendered impacts of the pandemic – on its impact on the capacity to combine care and work, and the resulting gendered impacts in public law scholarship. At the same time, we consider the ways in which the pandemic has created new ways of thinking about work, especially flexible work, which open up the possibilities of a new more gender-equal society, economy and academy. The webinar will feature a panel discussion led by Grainne de Burca and Rosalind Dixon, and which draws on the diverse perspectives of leading female-identifying members of the Society, as well as experts on gender and economic policy, including Michaela Hailbronner, Ruth Rubio Marin, Marcela Prieto Rudolphy, Iyiola Solanke, Betsey Stevenson and Julie Suk.

TIME:
Jul 22, 2020 09:00 Eastern Time (US and Canada)

ICON Forum on Gender and Public Law – Meeting


MEETING DESCRIPTION:
In issue 18:2 of ICON, the journal invited a group of scholars to share their reflections on gender and public law at a time of backlash against gender equality movements in various parts of the world. We are delighted to have Professors Christopher McCrudden, Stefano Osella, Ruth Rubio Marin and Anna Śledzińska-Simon, join Gráinne de Búrca, Michaela Hailbronner and Marcela Prieto Rudolphy for this roundtable discussion on gender and public law.

TIME:
Jul 22, 2020 10:30 Eastern Time (US and Canada)

For more details on these and other upcoming events, and to register, see here.

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Published on July 20, 2020
Author:          Filed under: Editorials
 

What’s New in Public Law


Chiara Graziani, Research Fellow in Constitutional Law, University of Genoa (Italy) and Academic Fellow, Bocconi University (Italy)


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 Justice invalidated Decision 2016/1250 on the adequacy of the protection provided by the EU-US Privacy Shield.
  2. The European Court of Human Rights ruled an asylum seeker’s case against a return to Afghanistan inadmissible.
  3. The German Federal Constitutional Court upheld a complaint against discrimination based on parentage in the context of restoring citizenship.
  4. The Ukraine Constitutional Court declared unconstitutional a criminal code provision concerning judges’ liability.
  5. The Supreme Court of the United Kingdom ruled on the compatibility of police covert operations aimed at hunting child molesters with the right to private life and correspondence.

In the News

  1. The President of Mali announced the dissolution of the Constitutional Court.
  2. The U.S. Homeland Security Department announced it would extend restrictions on non-essential travel at U.S. land borders with Canada and Mexico through August 20, 2020.
  3. A Canadian federal court recommended an external review of the Canadian Security Intelligence Service.
  4. Two members of the Catalan independence movement whose mobile phones were targeted with spyware announced they will take legal action against the former head of the Spanish national intelligence center.
  5. The US President, Donald Trump, will further challenge the Manhattan district attorney’s subpoena for his financial records after the Supreme Court decides on his financial records.

New Scholarship

  1. K. Ewing, J. Mahoney, A. Moretta, MI5, the Cold War, and the Rule of Law (2020) (analyzing the evolution of MI5’s mandate during the Cold War, its surveillance targets, and what it did with the information it gathered)
  2. T. Marzal, From World Actor to Local Community: Territoriality and the Scope of Application of EU Law, in L. Azoulai (ed.), European Union Law and Forms of Life. Madness or Malaise? (2020) (offering a new interpretation of the territoriality of EU law)
  3. C.M. Flood, V. MacDonnell, J. Philpott, S. Thériault, S. Venkatapuram (eds.), Vulnerable: The Law, Policy and Ethics of COVID-19 (2020) (addressing vulnerabilities and interconnectedness made visible by the pandemic and its consequences, along with the legal, ethical and policy responses)
  4. D. Pozen, K.L. Scheppele, Executive Underreach, in Pandemics and Otherwise, American Journal of International Law (forthcoming 2020) (examining executive branches’ role in times of emergency)
  5. M.A. Restrepo Medina, Interculturalidad, protección de la naturaleza y construcción de paz (2020) (addressing the relationship between the need to protect nature and interculturality)
  6. A. Vedaschi, L. Cuocolo (eds.), L’emergenza sanitaria nel diritto comparato: il caso del Covid-19, DPCE Online (2020) (providing a comparative study of legal reactions to tackle Covid-19 and discussing major public law issues arising the refrom)

Calls for Papers and Announcements

  1. The Human Rights Center of the University of Minnesota Law School will host the webinar “The Use of Biometric Data to Identify Terrorists: Best Practice or Risky Business?” on July 22, 2020.
  2. Notre Dame Law School’s Program on IP & Technology Law and the AI Society Project at the Università di Padova will hold a virtual event on “The Role of Law, Norms, and Technology in Contact Tracing”, to be live-streamed on the AI Society website on July 22, 2020.
  3. The British Institute of International and Comparative Law will host the webinar “Artificial Intelligence, Big Data and the Law: Reimagining the New Roots of Environmental Law” on July 23-24, 2020.
  4. The Internet and Computer Law Section of the American Association of Law Schools (AALS) invites paper submission for its session on “Deep Surveillance” to be held during the AALS 2021 Annual Meeting. Submissions are due by August 14, 2020.
  5. Notre Dame Law School’s Program on IP & Technology Law announces a virtual event co-hosted with Twitter on “The Future of Privacy from Ireland to America”, to be held on August 27, 2020.
  6. The Socio-Legal Review welcomes the submission of articles for its seventeenth volume as well as for the Socio-Legal Review Forum. The deadline is September 15, 2020.
  7. The International Review of Human Rights Law invites submissions for its forthcoming issue. The deadline to send manuscripts is September 29, 2020.
  8. The National Law School of India Review invites contributions for its forthcoming issue. The deadline for submissions is October 30, 2020.
  9. A new research group on “Public Law Responses to Public Health Emergencies” was established within the International Association of Constitutional Law.

Elsewhere Online

  1. B. Ackerman, O Brasil precisa de nova Constituição, Correio Braziliense
  2. R. Booth, A dark cloud or the promise of rain: Section 25 and the fate of land restitution in South Africa, AfricLaw
  3. D.R. Cameron, After a busy week in the EU, all eyes turn to Friday’s European Council meeting, Yale MacMillan Center
  4. D. Sarmiento, A conversation with Professor Wojciech Sadurski on the Rule of Law crisis in Poland, EU Law Live
  5. A. Jakab, Moral Dilemmas of Teaching Constitutional Law in an Autocratizing Country, Verfassungsblog
  6. Y. Joshi, Does Transitional Justice Belong in the United States?, Just Security
  7. M. Kende and D. Lithwick, The Supreme Court Still Refuses to Acknowledge Systemic Racism, Slate
  8. J.R. Murphy, The Palace Letters Case: Constitutional Conventions and the Confidentiality of Royal Correspondence in the Commonwealth Realms, UKCLA Blog
  9. E. M. Rashwan, Egypt Under COVID-19: Normalizing Emergency, IACL-AIDC Blog
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Published on July 20, 2020
Author:          Filed under: Developments
 

Brazil’s Constitutional Dilemma in Comparative Perspective: Do Chile and Spain Cast Light on the Bolsonaro Crisis?


Introductory Note: This is an expanded version of an essay originally published in Portuguese by the Correio Braziliense on Monday, July 13, 2020. Here is an English translation.

The present essay provides a comparative perspective on Brazil’s current crisis, and provides a global audience with a more detailed account of its constitutional development over the past forty years.


Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University

Brazil needs a new Constitution. Increasing numbers of Brazilians are losing faith in the system established in 1989. The political corruption revealed in the Car Wash scandal, culminating in Bolsonaro’s dictatorial and incompetent response to the Coronavirus crisis, have led ordinary citizens to fear that Brazilian democracy has no future.

The best way to respond to escalating political alienation is to convene a new Constituent Assembly in 2023. Once elected, the delegates should reconsider key decisions by the Assembly of 1988, and see how they have, over the decades, generated the current crisis of public confidence.

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Published on July 16, 2020
Author:          Filed under: Analysis
 

Too Poor to Travel: The Right to Inclusive Mobility Beyond the Lockdown

Sofia Ranchordas, University of Groningen

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

As governments throughout the world are devising strategies to ensure that their citizens can safely return to their workplaces after the initial 2020 public health lockdowns, transportation experts are debating whether mobility will ever be the same. The spread of COVID-19 and the partial or full lockdowns that were established as a response to it, showed that many activities can be held online. Nevertheless, by now, most of us has come to the conclusion that remote meetings do not replace most physical activities. Academics are certainly wondering when they will be able to present their new papers at an academic conference or teach a class before an audience of interested students without facial coverings. Nevertheless, we academics can (for better or worse) work remotely. The same cannot be said about millions of workers who need to be physically present and use public transit on a daily basis. When public transit shuts down, does not guarantee social distancing or regular cleaning, or prohibitions are established on who can travel during peak hours and who cannot, low-income householders are affected.

This column draws attention to the problem of transport poverty and the need for more legal research on inclusive mobility. I do not argue that we should add another fundamental right to the longstanding proliferation of fundamental rights. Rather, I contend that inclusive mobility is grounded in the right to equal treatment, particularly in the case of physical or psychological disabilities. This column draws on a recent paper and a podcast on inclusive mobility where I explain the problem of transport poverty  and how it sets limits on the exercise of multiple socio-economic rights.

Transport Poverty and Inclusive Mobility

Equal access to safe mobility is an issue that goes beyond the current responses to the spread of COVID-19 and that it is often overlooked. Policymakers focus on designing efficient mobility solutions that ensure that commuters get faster from A to B, using the most sustainable means of transport. In the COVID-19 era, this will mean that solutions will have to be adopted to ensure that fewer commuters crowd public transit during peak hours. In the Netherlands, the government has for example asked universities to change the schedule of physical lectures to ensure that students would not use public transportation during peak hours. The spread of COVID-19 may be pushing for other (and much more) innovative solutions to ‘shave the peak’ of public transportation demand. Nevertheless, it is also in this context and along the lines of these types of mobility policies that many citizens may feel that they are being left behind.

In Western countries about 20% of the population does not have access to adequate mobility options. They are too poor to travel. For these individuals, the price of public transit or fuel represents a very significant part of their household budget. The protests initiated two years ago by the gilets jaunes in France against fuel prices and in 2019, the violent student demonstrations in Chile against the increase in the price of subway prices, have shown the societal dimension of the problem. Existing scholarship has thus far focused on the need to improve the connectivity of rural communities and to help rural populations overcome social exclusion and isolation. However, transport poverty has become an urban problem due to the explosive expansion of cities in the last decades (urban sprawl), the high prices of housing in neighborhoods near employment centers, and the growing prospect of a new financial crisis.

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Published on July 15, 2020
Author:          Filed under: Analysis