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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law

Gaurav Mukherjee, S.J.D. Candidate, Central European University, Budapest

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

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

Developments in Constitutional Courts

  1. On 23 February, the Constitutional Court of South Africa held that under section 15 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004, domestic courts have extra-territorial jurisdiction to try offences committed outside of South Africa.
  2. The United States Supreme Court held that defendants who plead guilty retain the right to challenge their convictions as unconstitutional, which some say could inject uncertainty into a criminal justice system built on plea bargains.
  3. The U.K. Supreme Court held that the police have a positive duty toward individual victims of certain crimes to conduct an effective investigation under Article 3 of the European Convention on Human Rights.
  4. The Supreme Court of Ireland began deliberations on a case concerning the constitutional rights of an unborn child.
  5. The Federal Constitutional Court of Germany issued its Annual Statistics Report for 2017.
  6. The Supreme Court of India directed that the government amend the Indian electoral law to include the disclosure of sources of income of candidates to national elections, and not just their assets.
  7. The Lesotho High Court issued its judgment in Private Lekhetso Mokhele and Others v The Commander, Lesotho Defence Forces, which sets an important precedent on the rights of pregnant employees in the military.

In the News

  1. Civil rights groups petitioned the Constitutional Court of South Africa to quash a rule signed by former president Jacob Zuma that says evidence produced at a judicial inquiry into allegations of influence-peddling cannot be used in a criminal case.
  2. The Maldives’ Parliament extended the state of emergency in the country by another 30 days, absent the necessary parliamentary procedure.
  3. Pro-election activists in Thailand petitioned the Constitutional Court to strike down the ruling regime’s ban on political gatherings, which they said violates their constitutional rights.
  4. The Federal Constitutional Court of Germany listed for hearing a challenge to the Unified Patents Court in the EU.
  5. The United States Court of Appeals for the Fourth Circuit upheld a district court injunction on the Trump ban on the entry of citizens of Muslim majority countries, holding that it discriminated on the basis of religion. Read the judgment here.
  6. The United States Supreme Court held that a federal law protecting whistle-blowers in securities cases must be read narrowly to bar many retaliation suits from people who say they were fired for reporting wrongdoing. Read the judgment here.
  7. The Supreme Court of Pakistan disallowed former Prime Minister Nawaz Sharif, currently under investigation over allegations of corruption, from leading the PML-N party.
  8. The High Court of Kenya heard a petition on 22 February filed by the Kenyan National Gay and Lesbian Rights Commission (NGLHRC) seeking to strike down sections of the country’s laws that criminalize same sex relations.
  9. More than five million people have signed up to vote in Burundi’s controversial constitutional referendum in May and elections in 2020, which could allow President Pierre Nkurunziza to remain in power until 2034.
  10. Syria’s government on 13 February rejected efforts led by the United Nations to form a committee to rewrite Syria’s constitution.
  11. Libya’s Supreme Court blocked legal challenges from lower courts to a draft constitution on 14 February.
  12. In Indonesia, the Law on Representative Assemblies, permitting parliament representatives to press charges against those who “undermine its honor or that of its members”, was passed by the House of Representatives, which critics say will hamper criticism of Indonesian politicians and reduce their accountability if signed into law by the President.
  13. The UK Supreme Court began hearing a case on employment rights of non-formal workers, the outcome of which could have implications on the regulation of the so-called ‘gig’ economy.

New Scholarship

  1. Scott Stephenson, The Rise and Recognition of Constitutional Statutes (2017), in Richard Albert and Joel Colon-Rios (eds.), Quasi-Constitutionality and Constitutional Statutes: Forms, Functions, and Applications (Routledge, 2018), studying the influence that constitutional statues have on the traditional distinction between systems with a “capital-C constitution”, and those without one.
  2. Théo Fournier, From Rhetoric to Action: A Constitutional Analysis of Populism (2018), analyzing populism through the scope of constitutional law by examining the translation of populist rhetoric used by Victor Orban of Hungary and Marine LePen of France, into concrete constitutional amendments.
  3. Narnia Bohler-Muller, Michael Cosser, and Gary Pienaar (eds.), Making the road by walking: The evolution of the South African Constitution (2018), presenting a collection of essays on prominent judges of the Constitutional Court of South Africa and their contribution to the rights jurisprudence of the court.
  4. Robert D Cooter and Michael D. Gilbert, Constitutional Law and Economics (2018). Malcolm Langford and David S. Law (eds.), Research Methods in Constitutional Law: A Handbook (Edward Elgar), providing a snapshot of the ways in which this underexplored field combines positive, normative, and interpretive analysis, to shed light on six processes which sustain constitutions: bargaining, voting, delegating, entrenching, adjudicating, and enforcing.
  5. Dylan Lino, Indigenous Recognition, in Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018, forthcoming), examining the prospects for the recognition of Aboriginal and Torres Strait Islander peoples to serve as a value in interpreting the Australian Constitution.
  6. Dimitry Kochenov and Matthijs van Wolferen, Dialogical Rule of Law and the Breakdown of Dialogue in the EU (2018), arguing that while the EU system offers a wide understanding of dialogical frameworks between national and supranational courts, it is under threat of dissolution.
  7. András Sajó and Renáta Uitz, The Constitution of Freedom (2017), providing an overview of the doctrinal and empirical bases of constitutionalism from a comparative perspective.
  8. András Jakab and Viktor Oliver Lorincz, Rule of Law Indices and How They Could Be Used in the EU Rule of Law Crisis (2018), proposing a fresh look at the application of existing rule of law indices in evaluating the rule of law crisis within the EU.

Calls for Papers and Announcements

  1. The Centre for Human Rights, University of Pretoria called for applications to a one-week intensive short course on judicial enforcement of socio-economic rights in Africa from 14 to 18 May 2018.
  2. The Government and Law Research Group of the University of Antwerp invite papers for a conference in September 2018 on law-making in multi-level settings: federalism, Europe, and beyond.
  3. The University of Groningen issued a call for papers for a conference on 29 November 2018 on Blockchain, Public Law, and Public Trust.
  4. The European University Institute announced a vacancy for a Research Assistant in the Robert Schuman Centre for Advanced Studies in the field of “Naturalization Law and Policy: A Global Perspective”.
  5. The Max Planck Institute Luxembourg invites young researchers to actively participate in a colloquium on the “Current Challenges for EU Cross-Border Litigation in a Changing Procedural Environment” to be held on 26 September 2018.
  6. The Portsmouth Law School at the University of Portsmouth and the European University Institute (EUI) have issued a call for papers for a 2-day international conference on “Economic Constitutionalism: Mapping its Contours in European and Global Governance” on 14th and 15th June 2018.
  7. The Federal University of Rio de Janeiro issued a call for papers for the Contemporary Legal Theory Journal.
  8. The University of Trento invited applications to a summer school on “Learning and Practising Comparative Methodology in Constitutional Adjudication and Research”.
  9. The American Society of International Law will hold a roundtable (April 4-7, 2018) on “New Perspectives in International Legal Theory”, which affords an opportunity for up to three scholars to present and receive feedback on unpublished papers on topics related to international legal theory.

Elsewhere Online

  1. Dilek Kurban, Think Twice before Speaking of Constitutional Review in Turkey, Verfassungsblog, 20 February 2018.
  2. Paul Craig, The Withdrawal Bill, Status and Supremacy, U.K. Constitutional Law Blog, 19 February 2018.
  3. Nidhal Mekki, The fourth anniversary of the Tunisian Constitution: The unfinished transformation, Constitution Net, 19 February 2018.
  4. Grietje Baar, Symposium on the Third Option: ‘Not Man, Not Woman, Not Nothing’: ‘The Politics of Recognition and Emancipation Through Law’, Blog of the IACL, AIDC, 13 February 2018
  5. Pierre de Vos, Removing President Zuma: What are the options?, Constitutionally Speaking, 13 February 2018.
  6. Meg Russell and Jack Sheldon, A ‘dual mandate’ English Parliament: some key questions of institutional design, Constitution Unit: UCL, 13 February 2018.
  7. Viktor Zoltan Kazai, The Emerging Trend of Parliamentary Performance: Freedom of Expression in the Hungarian National Assembly, Verfassungsblog, 12 February 2018.
  8. Hayley J. Hooper, Balancing Access to Justice and the Public Interest: Privacy International and Ouster Clauses in the Broader Constitutional Context, K. Constitutional Law Blog, 12 February 2018.
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Published on February 26, 2018
Author:          Filed under: Developments
 

The Politics behind the Latest Advisory Opinions of the Inter-American Court of Human Rights

Nicolás Carrillo-Santarelli, Universidad de la Sabana, Colombia[1]

The Inter-American Court of Human Rights (hereinafter, IACtHR) recently made public the text of its two latest advisory opinions, In OC-24/17 the Court was of the opinion that the change of name and identity documents ought to be consistent with the self-perceived gender identities, reason why individuals should be entitled to request corrections in that regard; that self-same couples are entitled to the protection of the rights of the family (art. 17 American Convention on Human Rights), and that this requires the recognition of same-sex marriage (opinions 2, 3, 6, 7 and 8 of OC-24/17). In turn, OC-23/17 is interesting for several reasons, including the opinion that the right to a healthy environment is an autonomous right that may be directly invoked (paras. 55, 57) and protected through different human rights (para. 64); and that has individual and collective dimensions (para. 59), the violation of which has a correlated negative impact on other human rights as the rights to life and integrity (para. 66). Quite remarkably, the Court argued that “unlike other rights, it also protects elements of the environment, such as forests, rivers, seas and others, being them legal interests themselves, even if there is no certainty or evidence of a risk against individuals […] the Court notes the trend to recognize legal personality and, accordingly, rights of the nature both in judgments and constitutional systems” (para. 62). While there is much more to discuss about the content of those opinions of the Court, in this post I will focus on the politics behind them.

In this post, I argue that the rationale behind the request for the advisory opinions made by Costa Rica (in regard to OC-24) and Colombia (concerning OC-23) reflects the desire to achieve policy objectives by both states –of a domestic nature in the Costa Rican case, and in relation to international disputes in the Colombian one. In this sense, the request of the opinions corresponds to a process of interaction with international law aimed at facilitating certain political objectives, confirming what McDougal and Lasswell said frequently happens in the international arena.

Before exploring the specific goals pursued by Colombia and Costa Rica, it is important to consider why the authorities of both states chose the forum of the Inter-American Court. In my opinion, this election was no mere coincidence, but rather a calculated gambit that took into account why the way in which the Court usually operates made it quite likely that their objectives could be achieved.

Read the rest of this entry…

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Published on February 24, 2018
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Five Questions with Farrah Ahmed

Richard Albert, The University of Texas at Austin

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

This edition of “Five Questions” features Farrah Ahmed, Associate Professor and Associate Dean of Research at Melbourne Law School. Her full bio follows below:

Farrah Ahmed is an Associate Professor and Associate Dean of Research at Melbourne Law School. Before this, she was a Lecturer in Law at the Queen’s College, University of Oxford. Her educational history includes an LLB from the University of Delhi, and a Bachelor of Civil Law, an MPhil and a DPhil in law from the University of Oxford.

Her research spans public law, legal theory and family law. Her recent work on constitutional statutes, religious freedom, the doctrine of legitimate expectations, the duty to give reasons, public interest standing and social rights has been published in the Cambridge Law Journal, the Modern Law Review, the Oxford Journal of Legal Studies, Public Law, and the Law Quarterly Review. Her book Religious Freedom under the Personal Law System was published by Oxford University Press in 2016. Farrah is currently a Chief Investigator on an Australian Research Council Discovery grant studying religious dispute resolution processes. Farrah is a founding editor of the Indian Law Review and the Admin Law Blog.

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

I’m currently intrigued by common claims that laws on a range of matters – voting processes, healthcare, discrimination, seatbelts – express attitudes like hatred, contempt, endorsement, concern, respect or indifference towards particular groups. I’m trying to figure out whether these claims are justified. I’m hoping to end up either with a better account of what these laws express than the ones currently on offer, or with a compelling argument for why we should stop worrying about what these laws express.

This project is connected to another one on the justifiability of ‘symbolic establishment’ – prayers in Parliament, references to God in Constitutional preambles, religious symbols on flags. I am interested in symbolic establishment because it is often treated as relatively unproblematic, and because it is not clear whether and why we should worry about this kind of establishment.

I am also enjoying working with Richard Albert and Adam Perry on how common law judges engage, and ought to engage, with constitutional conventions; with Ghena Krayem on a book on sharia processes and family law; and with Swati Jhaveri on the arbitrariness doctrine in Indian constitutional law.

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

I definitely need a routine! It needs to be flexible to accommodate teaching, travel, administrative obligations and other commitments, but I try to write at least 3 days a week. I am a morning person, so I try to write as much as I can as early as I can – ideally before most other people are up. Like everyone else, I’ve written on dank underground trains, bumpy flights, noisy public spaces and farms with no wifi. But I have the good fortune to have colleagues and family who largely respect and protect my writing space and time.

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

I’m more responsive to particular themes than particular authors, I think. Anything on morality and public law, empirical work that looks like it might overturn assumptions that (as a non-empirical legal scholar) I have been relying on, or anything new on Indian public law (which usually crosses my desk via the Indian Law Review) will always grab my attention.

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?

Joseph Raz’s The Morality of Freedom, both for its ambition and its optimism.

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

Does it matter if our constitutional arrangements are secular? What is arbitrariness; why should public law protect against it? What (if anything) justifies religious freedom? How has administrative law developed in the common law world beyond the UK, Canada and Australia?

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Published on February 23, 2018
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Weak-Form Judicial Review as a Way of Legally Facilitating Constitutional Moments?

Richard Mailey, University of Trier, Lecturer in English Law and Terminology

Since the passage of the Canadian Charter of Rights and Freedoms in 1982, the idea of “weak-form judicial review”[1] has sparked a significant level of academic interest, and has been adopted in amended form by New Zealand and the UK in the framing of their own justiciable bills of rights in the 1990s. At its simplest, the idea that unites the primary bills of rights of Canada, New Zealand and the UK (“new commonwealth”[2] bills of rights) is that while courts can and should play an important role in the protection of fundamental rights, they should not – because of their “counter-majoritarian” status – be capable of claiming a de facto monopoly on the interpretation of fundamental rights, as the US Supreme Court often does, for example (because of the difficulty of overriding the USSC politically, via Article V amendments to the US Constitution). For this reason, section 33 of the Canadian Constitution Act 1982 gives Canada’s federal and provincial parliaments the power to “override” certain rights contained in the Canadian Charter of Rights and Freedoms for renewable five year periods, while the UK’s Human Rights Act 1998 withholds from courts the power to invalidate Acts of Parliament, thereby enabling the UK’s central parliament to simply ignore human rights rulings with which it disagrees.

As many readers will know, though, the balance between parliaments and courts that is anticipated by the use of the above mechanisms has not always come to fruition.

Read the rest of this entry…

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Published on February 22, 2018
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Article Review: Rajesh K. Reddy on Jessica Eisen’s Animals in the Constitutional State

[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Rajesh K. Reddy reviews Jessica Eisen’s article Animals in the Constitutional State, which appears in the current issue of I•CON. Eisen’s full article is available for free here.]

Rajesh K. Reddy, Interim Director, Animal Law LL.M. Program, Lewis & Clark Law School

It is no longer a given that animals should be invisible to constitutional law. Indeed, their interests are currently contemplated in the constitutional frameworks of at least eight countries. The existence of animal legal protections at the constitutional level may strike some scholars as curious, even counterintuitive given the historical understanding of constitutions as guarantors of human rights and human interests, including the interest in chattel property, a legal category into which animals still fall. But society’s growing appreciation of animal sentience, part and parcel of the recent “animal turn,” has produced a more nuanced view regarding animals’ intrinsic moral status and thus helped to reshape this paradigm. In charting the emergence and development of these constitutional considerations, Jessica Eisen’s “Animals in the Constitutional State” contributes to the growing discourse around the ability of traditional theories of constitutionalism to contemplate the interests of animals before proposing an alternative framework grounded in the ideal of protecting the state’s most vulnerable members.

Before advancing this vulnerability-based paradigm, Eisen first surveys existing constitutional animal protections in Switzerland, India, Brazil, Slovenia, Germany, Luxembourg, Austria, and Egypt. Eisen not only deconstructs these provisions themselves but also tracks the histories of their enactment and analyzes judicial determinations that have limited, refined, and in some instances expanded their scope. The purpose of this assessment is to identify and isolate the ethical and cultural values that led to the creation of these novel provisions. To this end, Eisen proposes five categories: human experientialism, or the human interests in advancing animal protections, such as ensuring their existence for future generations; animal experientialism, anchored in the recognition of animal sentience and the attendant desire to prevent suffering; deontology; human virtue; and minority oppression, which seeks to curtail the economic utilization of animals by minority groups. While Eisen treats these as distinct categories, she emphasizes how more than one value often serves as the inspiration for animals protections. For instance, as an example of Islamic-inspired deontology, Eisen points to Article 45 of Egypt’s constitution, which reads that the state shall provide for “the kind treatment of animals.” In her discussion of the article’s enactment, Eisen is careful to observe that the provision also enjoyed the support of advocates concerned with the link between human and animal violence, the argument being that by curtailing violence against animals, violence against humans would also witness a decline. As such, Egypt’s provision also proves to be buttressed by human experientialist concerns. Time and again, what Eisen reveals to readers unfamiliar with the nascent field of animal law are the overlapping, and oftentimes competing, interests that drive animal protection laws.

Read the rest of this entry…

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Published on February 20, 2018
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Je Suis Achbita! (I·CON Volume 15, Issue 4: Editorial)

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

Editorial: Je Suis Achbita!

Achbita, decided in March 2017 is not a run of the mill case. It raised what I think are hugely difficult conceptual legal issues. It also comes at a delicate moment in the social and political life of Europe, where the Court of Justice of the European Union is an important actor in shaping the climate and defining the moral identity in and of Europe. I do not believe the Preliminary Ruling of the ECJ comes even close to what one may expect from the supreme judicial voice of justice of our Union in a case of this nature.

The case concerned, as you will know, a Muslim woman whose employer insisted in the name of a neutrality policy of the Company that she may not wear the hijab (a head scarf) to work, and thus she lost her job. I think it is a fair reading of the ruling sent back to the referring Belgian Court that other than checking that the company, without overly burdening itself, could not find a place for Achbita in a back office which would not bring her into contact with the public, the Court had no major problems with the company’s policy compliance with the specific Directive bringing the case within the jurisdiction of European Law and the overriding human rights controlling norms such as the ECHR and the EU Charter of Fundamental Rights.

I will present the case, for reasons which I will explain below, with a slightly different factual matrix.

Read the rest of this entry…

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Published on February 20, 2018
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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 Supreme Court of Lybia declared that administrative courts lack jurisdiction over Constitutional Drafting Assembly (CDA) matters, thereby paving the way for drafting a new constitution.
  2. The ECHR condemned Spain for “inhuman and degrading treatment” of an ETA prisoner.
  3. The ECHR confirmed the compatibility with the Convention of a criminal conviction for hate speech of a citizen of Bosnia and Herzegovina.
  4. The Supreme Court of the United States gave the green light for the Pennsylvania congressional redistricting plan to proceed.
  5. The Supreme Court of Brazil rejected a lawsuit aimed at limiting land rights of quilombolas (former slave communities).
  6. The Constitutional Court of Romania struck down the law allowing the selection of managers in state-owned companies though political criteria.
  7. The Supreme Court of Canada reverses a court order to remove online content published before a publication ban was ordered.
  8. The High Court of Kenya holds that Coca Cola should provide nutritional information on its food labels.

In the News

  1. Cyril Ramaphosa has been sworn in as South Africa’s new president, following Jacob Zuma’s resignation.
  2. Ecuador reinstated presidential term limits.
  3. The Pakistan government drafted a constitutional amendment bill authorizing congressional appointment and removal of judges in the superior judiciary.
  4. Bermuda has passed legislation reversing the Supreme Court’s decision recognizing same-sex marriage in the country.
  5. A second federal court temporarily blocks the rescission of DACA.
  6. Four survivors of the church massacre in Liberia brought a civil suit in the US against the alleged perpetrator.
  7. Italy’s high administrative court ruled that running a degree course exclusively in English violates the primacy of the Italian language and the freedom to teach.
  8. North Carolina violated civil rights law by forcing a magistrate to resign over her objection to perform same-sex marriages.
  9. A Germany Regional Court ruled that Facebook’s use of personal data is illegal.
  10. The High Court of Zimbabwe lifted the ban on an acclaimed documentary film.

New Scholarship

  1. Steven G. Calabresi et al., Individual Rights Under State Constitution in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States, Northwestern Law & Econ Research Paper No. 18-02 (2018) (analyzing in historical perspective the individual rights protected under state constitutions in the United States)
  2. Allan R. Brewer-Carías and Carlos García-Soto (Eds.), Estudios sobre la Asamblea Nacional Constituyente y su inconstitucional convocatoria en 2017 (Editorial Jurídica Venezolana, 2017) (gathering essays arguing for the unconstitutionality of the current National Constituent Assembly in Venezuela)
  3. Grainne De Burca, Is EU Supranational Governance a Challenge to Liberal Constitutionalism? University of Chicago Law Review (Forthcoming) (inquiring into whether EU’s supranational form of governance fueled the rise of authoritarianism in Europe)
  4. Alon Harel & Adam Shinar, The Real Case for Judicial Review, in Erin Delaney & Rosalind Dixon (eds.), Elgar Research Handbook on Comparative Judicial Review (forthcoming 2018) (testing one of the justifications for judicial review, namely it facilitates the hearing of grievances)
  5. Rass Holdgaard, Daniella Elkan & Gustav Krohn Schaldemose, From cooperation to collision: The ECJ’s Ajos ruling and the Danish Supreme Court’s refusal to comply, 55 Common Market Law Review (2017) (examining the recent clash between the ECJ and the Danish Supreme Court over the Ajos case, and explaining what led the Danish Supreme Court to refuse to comply with the ECJ judgment)
  6. Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 Michigan Law Review (2017) (offering a conceptual and historical account of the role of internal norms and structures in controlling agency action in the United States)
  7. Valérie Verbist, Reverse Discrimination in the European Union: A Recurring Balancing Act (Intersentia, 2017) (examining reverse discrimination from a EU law perspective and under the laws of five member states)

Calls for Papers and Announcements

  1. The University of Bologna is inviting applications for the Summer School “Methodology of comparative law. Constitutional, Transnational and Political Justice Models,” which will take place in Bologna, Italy, on July 2-6, 2018.
  2. The ICRC Delegation in Washington, and faculty from Cardozo, Stanford and Loyola Law School welcome submissions for the 3rd annual workshop “Revisiting the role of international law in national security,” to be held in New York, on June 18th, 2018.
  3. The Stanford Program in Law and Society issued a call for papers for the 5th Conference for Junior Researchers to be held on May 11-12, 2018. The theme for the 2018 conference is ‘Law in Everyday Life.’ Deadline to submit abstracts: February 5, 201
  4. The American University – Washington College of Law invites applications for its Program of Advanced Studies on Human Rights and Humanitarian Law, to be held in Washington D.C., from May 29 to June 15, 2018.
  5. The Information Law Institute at NYU is accepting applications for research fellowships to begin in Fall 2018. Applications received on or before February 20 will be given priority.
  6. The Faculty of Law, Economics and Finance of the University of Luxembourg has an opening for a Doctoral candidate in EU public law and/or comparative administrative law. The deadline for applications is March 31, 2018.
  7. The University of Aberdeen, in collaboration with the Horizon 2020 Marie Skłodowska-Curie programme, is offering six Early Stage Researcher (PhD) positions, lasting 3 years starting in September 2018, for ground-breaking research on how political concepts are used in the world. Applicants researching on the concept of constitutionalism are especially welcome.
  8. The University of Oxford, Faculty of Law and St Peter’s College is offering an Associate Professorship of Public International Law. The closing date for applications is February 22, 2018.
  9. The American Society of International Law has launched a call for volunteers (current law student or young professional within three years of graduation) for the ASIL 2018 Annual Meeting, to be held in Washington, DC from April 4-7, 2018.

Elsewhere Online

  1. David R. Cameron, German parties negotiate a coalition agreement. But will the SPD members say yes?, Yale MacMillan Center
  2. Donal Coffey, Does UK Law Require a Referendum on the EU Withdrawal Agreement?, European Futures
  3. Grietje Baars, Symposium on the Third Option: ‘Not Man, Not Woman, Not Nothing’: ‘The Politics of Recognition and Emancipation Through Law’, Blog of the IACL, AIDC
  4. Michael Henry Ll. Yusingco, Diagnosing pathologies in the 1987 Philippines Constitution, BusinessWorld
  5. Bob Morris, The Crown: What does Netflix’s dramatisation and the celebritisation of an evolving monarchy mean for the royal family in 2018?, The Constitution Unit
  6. 9 Important Constitutional Amendments That Changed the Course of India, The Better India
  7. Alina Cherviatsova, Memory Wars: The Polish-Ukrainian Battle about History, Verfassungsblog
  8. Marko Milanovic, A Lot of Activity in the Inter-American Court, EJIL Talk!
  9. Julia Lowis, Establishing a breach of Article 3 in medical cases: The ‘applicability’ of Strasbourg jurisprudence (update), OxHRH Blog
  10. Bill Perry & Adams Lee, China Targets US Sorghum in Latest Trade Spat, China Law Blog
  11. Jonathan H. Adler, Why FDA regulations limiting e-cigarette marketing may cost lives and violate the Constitution, The Volokh Conspiracy
  12. Colin PA Jones, A year in the (short) life of Japan’s Cabinet, The Japan Times
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Published on February 19, 2018
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ICON’s Current Issue (Table of Contents)

Volume 15 Issue 4

Table of Contents

Editorial

Honor Roll of Reviewers 2017

Articles

Jessica Eisen, Animals in the constitutional state

William Partlett, The American tradition of constituent power

Rosalind Dixon and Tom Ginsburg, The forms and limits of constitutions as political insurance

Elisa D’Alterio, Integrity of the public sector and controls: A new challenge for global administrative law?

Tony Prosser, Constitutions as communication

Symposium: Federalism and rights:

Europe and the United States compared

Thomas Kleinlein and Bilyana Petkova,  Federalism, rights, and backlash in Europe and the United States

Aida Torres Pérez, The federalizing force of the EU Charter of Fundamental Rights

Brian Soucek, Marriage, morality, and federalism: The USA and Europe compared

Michèle Finck, Fragmentation as an agent of integration: Subnational authorities in EU law

Bilyana Petkova, Domesticating the “foreign” in making transatlantic data privacy law

Thomas Kleinlein, Federalisms, rights, and autonomies: The United States, Germany, and the EU

I.CON: Debate!

Catharine MacKinnon, Substantive equality revisited: A rejoinder to Sandra Fredman

I.CON: Debate!

Anna Södersten, The (dis)establishment of gender: Care and gender roles in the family as a constitutional matter: A reply to Ruth Rubio Marín

Ruth Rubio Marín,  The (dis)establishment of gender: Care and gender roles in the family as a constitutional matter: A rejoinder to Anna Södersten

Critical Review of Governance

Peter Hilpold, Quotas as an instrument of burden-sharing in international refugee law: The many facets of an instrument still in the making

Mathias Möschel, Race in French “republican” law: The case of Gens du voyage and Roma

 Book Reviews

Andrew Arato. Post Sovereign Constitution Making: Learning and Legitimacy (Richard Mailey)

Jan-Werner Müller. What is Populism? (Juan F. González Bertomeu and Maria Paula Saffon)

Michael W. Dowdle and Michael A. Wilkinson (eds.). Constitutionalism Beyond Liberalism (Tejas Parasher)

Yaniv Roznai. Unconstitutional Constitutional Amendments (Thomas Wischmeyer)

 Scott Stephenson. From Dialogue to Disagreement in Comparative Rights Constitutionalism (Claudia Geiringer)

Jiří Přibáň. Sovereignty in Post-Sovereign Society: A Systems Theory of European Constitutionalism (Jack Meakin)

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Published on February 16, 2018
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Fighting the “New Normal,” North and South (I-CONnect Column)

Francisca Pou Giménez, ITAM, Mexico City

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

As contributions to this blog regularly attest, we professors spend a good part of our time crafting concepts, suggesting labels, producing classifications, and identifying and naming trends. From this perspective, political and legal developments in Mexico have often posed a challenge. Twenty years ago, transition studies already had difficulties in classifying the regime the country was gradually abandoning. Looking back, at the beginning of the 1990s, a scholar famously compared the PRI-led system to a platypus, the semiaquatic egg-laying mammal with a beaver tail and a duck mouth.[1] It wasn’t democratic, but neither dictatorial nor totalitarian; it was authoritarian, yet of a civil and not of a military kind; it suffocated political pluralism, yet allowed for a degree of political contestation within the hegemonic party; it was elitist, but also in some way inclusive of peasants, workers and business people.

More than two decades after, Mexico is generally named a democracy, but it is still one very difficult to apprehend and adjectivize. At the constitutional level, its 101-year old text —amended more than 700 times—is very heterogeneous: it contains most of the institutions distinctive of contemporary Latin American constitutions, yet also remnants of time past, and provisions that do not pass rights-based muster.[2] As far as performance is concerned, things couldn’t look grimmer, with more than 150,000 violent deaths and 25,000 disappeared people in ten years,[3] a Gini coefficient above 0.5,[4] 53 million people in poverty,[5] and political and social dynamics swamped by corruption and impunity. Yet things go on. The country is still the eleventh-largest economy in the world;[6] tourism achieved last year a record figure of 35 million visitors;[7] people prepare for the July 2018 election; and judges and public officials get up in the morning and go about their jobs. Mexico is today a country in which everything is seemingly susceptible of being “normalized.”

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Published on February 14, 2018
Author:          Filed under: Analysis
 

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 High Court in Kenya found the country’s criminal defamation law unconstitutional.
  2. The Constitutional Court in Malta ruled that a person facing criminal proceedings has a right to silence when testifying before a parliamentary committee.
  3. The Constitutional Court in Spain announced that it would consider a motion to suspend home rule in Catalonia.
  4. The Supreme Court in Namibia ruled that long jail terms are unconstitutional.
  5. The Constitutional Court in Turkey rejected a demand to release two Turkish journalists despite an earlier ruling that the rights of imprisoned journalists had been violated.
  6. The Constitutional Court in Zambia suspended the case in which four political parties seek an interpretation of President’s eligibility to run for office in the 2021 presidential elections.
  7. The Supreme Court in Ireland refused the Pro-Life Campaign’s application to be heard in the State’s forthcoming appeal concerning the extent of the constitutional rights of the unborn.
  8. The Supreme Court in South Korea will judge the case against the South Korean government over cryptocurrency regulations.
  9. The Constitutional Court in Germany ruled that party members get a say on the grand coalition deal.
  10. The Constitutional Court in South Africa will decide whether two sections in the Firearms Control Act are unconstitutional.
  11. The Supreme Court in Cambodia upheld the conviction against land rights activist in a case widely seen as politically motivated.

In the News

  1. The European Parliament demanded control of who will succeed the head of the EU executive next year, setting up a clash with national governments in the coming months.
  2. The Australian parliament will amend the proposed Foreign Interference Law in order to protect journalists.
  3. Security forces in the Maldives sealed off the Parliament and arrested two opposition legislators.
  4. A judge from the Netherlands will ask the European Court of Justice to answer key questions about the rights of UK citizens on the continent post-Brexit.
  5. The Polish President signed the anti-defamation bill, causing international protests.
  6. A Pakistani court sentenced one person to death and five others to life imprisonment for lynching a student accused of blasphemy.
  7. The French president rejected growing nationalist demands in Corsica.
  8. The European Union enlargement commissioner affirmed that Serbia must reach a legally binding agreement on relations with Kosovo if it aims to join the EU by 2025.
  9. South Africa’s deputy president announced it is expected that the president steps down in the coming days.
  10. The Court of Final Appeal in Hong Kong freed three democracy leaders but warned against future acts of dissent.
  11. The Irish parliament is suspended after a huge row between politicians.
  12. The ceremonial opening of the new session of Jamaican parliament scheduled to take place on 15 February 2018.
  13. The Antigua and Barbuda parliament approved a bill allowing the use of cannabis.
  14. The members of the Welsh parliament spoke the Welsh language in debate for the first.
  15. The Iraqi Parliament suspended three Kurdish lawmakers for objecting to the 2018 budget bill.
  16. The Ukrainian parliament condemned the Polish anti-defamation law that allows penalties to be imposed on anyone who denies crimes committed by Ukrainian nationalists.

New Scholarship

  1. Richard Albert, Formas y función de la enmienda constitucional (2017) (explaining how constitutional amendment rules are structured, and offering advice on designing rules for both adopting and amending constitutions)
  2. Alice Valdesalici, Francesco Palermo and Annika Kress (eds.), Comparing Fiscal Federalism (2018 forthcoming) (investigating intergovernmental financial relations and the current de jure and de facto allocation of financial and fiscal powers in compound states from a comparative and interdisciplinary perspective)
  3. Sadaf Aziz, The Constitution of Pakistan, A Contextual Analysis (2018) (providing a contextual account of Pakistan’s constitutional laws and history from a pre-colonial period to a contemporary setting)
  4. Nico Steytler (ed.), Concurrent Powers in Federal Systems, Meaning, Making, Managing (2017) (examining from a comparative perspective the issue of concurrency of powers confronting both established and emerging federations through case studies of 16 countries on five continents)
  5. Robert Böttner and Jan Grinc, Bridging Clauses in European Constitutional Law: Legal Framework and Parliamentary Participation (2018) (focusing on the legal framework for the use of the bridging clauses of TEU as well as on parliamentary participation in the process of activating these clauses)
  6. Michael Hein, Constitutional Entrenchment Clauses Dataset (2018) (providing a new dataset on constitutional entrenchment clauses in 860 national constitutions from 1776 to 2015)
  7. Aleksandra Gliszczynska-Grabias and Anna Sledzinska-Simon, Victimhood of the Nation as a Legally Protected Value in Transitional States – Poland as a Case Study (2016) explaining mechanism of using criminal laws for historical assessment and showing instances when victimhood becomes a legally protected value used to justify limitations of free speech and academic research)
  8. Lucia Serena And Federico Casolari (eds.), The Principle of Equality in EU Law (2018) (providing a comprehensive, in-depth legal analysis of the actual understanding of the equality principle at EU level after a period of significant change)

Call for Papers and Announcements

  1. Richard Albert and Martin Scheinin invite submissions for the Workshop on Abuse of the Constitution in Times of Emergency at the 10th World Congress in Constitutional Law, scheduled for June 18-22, 2018 in Seoul.
  2. Global Constitutionalism, in partnership with PluriCourts, is organizing a workshop “Challenges to Global Constitutionalism” on 4-6 July in Berlin. The deadline for submitting abstracts is 23 February 2018.
  3. The International Association of Constitutional Law announces a call for abstracts for the 10th World Congress of Constitutional Law “Violent Conflicts, Peace-Building and Constitutional Law” on 18-22 June 2018 in Seoul. The deadline for a submission of abstracts is 30 March 2018.
  4. The University of Sydney organizes the conference “The New Citizenship: Law, Legal Status and Belonging in the 21st Century” on 15-16 March 2018 in Sydney. The registrations must be completed
  5. The Centre for Legal Theory and Empirical Jurisprudence invites submissions for “The second Conference on Empirical Legal Studies in Europe (CELSE)” on 31 May to 1 June 2018 in Leuven. The deadline for submitting abstracts is 15 February 2018.
  6. The University of Innsbruck organizes a conference on “Representing Regions, Challenging Bicameralism” on 22-23 March 2018. The registrations are due to 19 March 2018.
  7. The Sorbonne Law Faculty, the University of Strasbourg, the Albert Ludwigs University, the German University of Administrative Sciences, the Heidelberg Law Faculty, and the Max Planck Institute for Comparative Public Law and International Law in cooperation with the University of Milan organize the 12th German-French Doctoral Seminar on Comparative Law in Public Law, International Law and European Law “Rechtsvergleichung im öffentlichen Recht angesichts der europäischen Integration” on 7-9 June 2018 in Heidelberg. The deadline for applications is 15 March 2018.
  8. The Institute of Federalism and the Chair of Swiss and Comparative Constitutional Law of the University of Fribourg announces the 28th Edition of the three-week Summer University “Federalism, Decentralisation and Conflict Resolution” from 27 August to12 September 2018 in Fribourg. The deadline for application is 31 March 2018.
  9. The International Association of Centres for Federal Studies (IACFS) announces that entries for the Ronald L. Watts Young Scholar Award 2018 are now open. Nominations and papers must be submitted no later than 30 April 2018.
  10. The University of Melbourne and the University of Cambridge organize a conference “The Frontiers of Public Law” on 11-13 July 2018 in Melbourne. Online registration is now open.
  11. Institute of Legal Information Theory and Techniques of the Italian National Research Council welcomes abstract submissions for the conference “Law via the Internet 2018, Knowledge of the Law in the Big Data Age” on 11-12 October 2018 in Florence. The deadline for submitting abstracts is 27 April 2018.
  12. The Government and Law Research Group at the University of Antwerp organizes a full-day eight annual doctoral conference “Values and principles in multilevel governance: challenges and opportunities” on 25 May 2018 in Antwerp.

Elsewhere Online

  1. Alexander Kloth, One law to rule them all, The Völkerrechtsblog
  2. Leah Trueblood, The Merits and Meaning of a ‘Second’ Referendum, UK Constitutional Law Association
  3. Siim Trumm, Different visions of representation among voters and candidates in Wales, Democratic Audit UK
  4. Helen Irving, What is history, again?, AUPUBLAW
  5. Rick Hasen, Understanding the Supreme Court’s Two Orders in the North Carolina Gerrymandering Cases, and How It Fits into the Bigger Picture, Election Law Blog
  6. Marc Sanjaume-Calvet, Secession and Federalism: A Chiaroscuro, 50 Shades of Federalism
  7. Elisabeth Greif, Symposium on the ‘Third Option’: ‘Not Man, Not Woman, Not Nothing’: Tertium NON datur: Gender binary as a ‘principle of the Austrian legal order’?, Blog of the IACL, AIDC
  8. Maximilian Steinbeis, Project Waterproof, Verfassungsblog
  9. Stefanie Lemke, Who Holds Russia’s Judges and Public Prosecutors to Account?, The Völkerrechtsblog
  10. Tomáš Nociar, Far right politics in Germany: from fascism to populism?, Democratic Audit UK
  11. George W. Gathigi, How Closure of TV Stations has narrowed Democratic Space in Kenya, AfricanLii
  12. Editor, ‘Losing Opportunities’, Lebanon Campaigns for More Women in Parliament, Asharq Al Awsat
  13. Christopher R. Hill, South Korean President Moon Jae-in’s Olympic realpolitik, Japan Times
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Published on February 12, 2018
Author:          Filed under: Reviews