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I·CONnect

Blog of the International Journal of Constitutional Law

Giving Substance to Singapore’s Fake News Law: Online Citizen

Marcus Teo, Sheridan Fellow, National University of Singapore’s Faculty of Law

The threat that fake news poses to free speech and democracy is now well-established, though less established is how Governments should address it. Legislation which requires social media companies and intermediaries to remove or rebuff falsehoods posted on their platforms, like Germany’s Network Enforcement Act, are now no longer rarities,[1] though some countries like the United States continue to resist regulation. Even then, among states that do regulate online falsehoods, it remains rare for laws to require individuals to take responsibility for their statements. This responsibility is potentially very onerous, since individual statement-makers may lack the information or resources needed to prove the legitimacy of their statements.

Singapore’s Protection from Online Falsehoods and Manipulation Act 2019 (POFMA) is an example of such a law: it grants the Minister for Home Affairs power to issue Directions against statement-makers who make false statements of fact deemed threatening to the public interest.[2] These Directions oblige statement-makers to either append a notice to their statements (which the Act calls “subject statements”) stating that they are false,[3] or remove those statements entirely,[4] on pain of criminal penalties.[5] Websites which repeatedly post statements subject to Directions may also have access to them blocked or disabled by internet service providers or social media platforms.[6] POFMA, however, does contain an avenue of redress: statement-makers may appeal Directions to the High Court on several grounds, including that the subject statement was not a false statement of fact, which the Court must assess de novo.[7] A further right of appeal to the Court of Appeal is also available with leave.[8]

Given POFMA’s potential implications for individuals, the right to appeal POFMA Directions is of considerable importance. Yet, the text of POFMA itself leaves several important questions unanswered: is the Minister’s ability to identify subject statements unfettered or guided by law? Who bears the burden of proving the truth or falsity of subject statements in an appeal? And more fundamentally, is POFMA consistent with the right to free speech enshrined in Article 14 of Singapore’s Constitution? In The Online Citizen v Attoney-General,[9]its first decision rendered on appeals from POFMA Directions, the Singapore Court of Appeal set out to address these questions.

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Published on November 4, 2021
Author:          Filed under: Analysis
 

Germany v Italy: Jurisdictional Immunities—Redux (and Redux and Redux)

J.H.H. Weiler, co-Editor-in-Chief, International Journal of Constitutional Law

[Editors’ Note: This piece will be published in the next edition of the International Journal of Constitutional Law (I•CON) as part of the Editorial.]

Will we ever see closure to this saga at the center of which one finds the somewhat controversial decision of the International Court of Justice of 2012 and the very controversial decision of the Italian Constitutional Court of 2014 which rebuffed that decision?

There is no need to recap fully the endless “puntatas” in this story, which have been followed assiduously like a successful series on Netflix, not least on the blog, EJIL: Talk! (see here and here and here and here and here and here and here). I will just mention, since this is germane to my argument, that Italy and Germany had reached a settlement in the 1950s and 1960s, through treaties, on agreed compensation for all German crimes during World War II, which would preclude any further claims by Italy. Far from a King’s ransom, but the Italians accepted it. Germany duly paid what was agreed. Italy “unduly” spent the money on post-war reconstruction rather than compensating individual victims. Plaintiffs tried unsuccessfully to obtain relief in the German courts for a variety of legitimate legal obstacles.

In the wake of the ICJ decision, the Italian government and parliament, acting (entirely correctly) in exemplary good faith, introduced legislation that gave full effect to said decision. One thought at the time that this was the end of the series. A happy ending for the Rule of Law (though not so happy for the hapless victims of the German atrocities, sympathy for whom should not be forgotten).

Yet, to the surprise of most spectators, the “regia” thought otherwise and a new season was announced, featuring an application to the Italian Constitutional Court which struck down that legislation as violative of fundamental principles of the Italian Constitution and restored the right of the victims to bring civil actions for damages in the Italian courts.

As autumn follows summer, such actions were brought; as winter follows autumn, Germany (entirely correctly) refused to appear in such proceedings. And as spring follows winter, default judgments for damages were entered and German assets in Italy were attached.

Now it appears, as summer follows spring, that the Germans are losing their patience and word is that they are contemplating bringing the matter (the non-compliance of Italy with a decision of the ICJ) before the Security Council and/or starting new proceedings before the ICJ.

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Published on November 3, 2021
Author:          Filed under: Editorials
 

Roundtable Discussions on the State of Constitutionalism in the World | November 9-19, 2021


Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin; Allan Rock Visiting Professor of Law, University of Ottawa


We recently published the fifth edition of the Global Review of Constitutional Law, an annual publication bringing together dozens of jurisdiction-specific reports written by scholars and judges—often in collaboration—on constitutional law developments over the previous year.

This month, the editors of the Global Review will host a series of 5 roundtable discussions with some of the contributors. Details of participants are highlighted below. All are welcome to join us to learn about recent developments in constitutional law in various jurisdictions and to discuss the state of constitutionalism in the world.

***

2020 Global Review of Constitutional Law

Online Roundtable Discussions


Tuesday, November 9, 2021
2:00pm to 3:30pm UTC

Host: Pietro Faraguna

Zoom: https://us04web.zoom.us/j/73726261033?pwd=T0RnSW00L2NCSjNjR1o3alB2T2RZUT09
Meeting ID: 737 2626 1033
Passcode: V2kpCp
JurisdictionParticipants
AlbaniaArta Vorpsi
Bosnia and HerzegovinaMaja Sahadzic
EgyptEman M. Rashwan
Ahmad Ali Lotief
GreeceAlkmene Fotiadou 
North Macedonia Jasmina Dimitrieva
PortugalCatarina Santos Botelho
Ana Teresa Ribeiro

***


Friday, November 12, 2021
10:00am to 11:30am UTC

Host: Simon Drugda

Zoom: https://ucph-ku.zoom.us/j/67467255319 

JurisdictionParticipants
KenyaJill Cottrell Ghai
NigeriaDr. Solomon Ukhuegbe
Dr. Gabriel Arishe 

***


Monday, November 15, 2021
8:00pm to 10:30pm UTC

Host: David Landau

Zoomhttps://fsu.zoom.us/meeting/91911847858
 
JurisdictionParticipants
BrazilJuliano Zaiden Benvindo
Aline Osório
Costa RicaOlman Rodriguez Loaiza
Sigrid Morales
Bruce Wilson
MéxicoIrene Spigno
Alfonso Herrera
Mauro Rivera
VenezuelaCarlos Garcia Soto
Daniela Urosa
Raul Sanchez Urribarri

***


Wednesday, November 17, 2021
7:00pm to 8:30pm UTC

Host: Richard Albert

Zoom: https://utexas.zoom.us/j/94038140179
 
JurisdictionParticipants
EstoniaPaloma Krõõt Tupay
GeorgiaMalkhaz Nakashidze
Palestine Sanaa Alsarghali 
TaiwanMing-Sung Kuo
UkraineOleksandr Marusiak

***


Friday, November 19, 2021
10:00pm to 11:30pm UTC

Host: Simon Drugda

Zoom Linkhttps://ucph-ku.zoom.us/j/63904560755

JurisdictionParticipants
Czech RepublicMonika Kováčová
Maxim Tomoszek
PolandPiotr Mikuli
Grzegorz Kuca
SlovakiaKamil Baraník

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Published on November 2, 2021
Author:          Filed under: Developments
 

Constitutional Boot-strapping in Chile?

Benjamin Alemparte, Duke Law School, and Joshua Braver, University of Wisconsin Law School

Three months into its deliberations, on October 7th, the Chilean Constitutional Convention finished approving its internal regulations. Most significantly, the Convention infringed its legal mandate by tampering with the threshold for its voting rules. In so doing, the Convention claimed that its legitimacy no longer derives from the Constitution, but from the people themselves. These flirtations with illegality are at this point mostly symbolic, but in time they might be the starting point for weightier legal violations in the constitution-making process.

Up until now, the process had been completely legal. In response to massive protests known as the “social outbreak,” and with the support of all the major political parties, Congress had amended the Constitution to permit the calling of a constitutional convention. Those amendments laid out a detailed structure for how the process would unfold.

Most importantly, the amendments limited the Convention’s to the task of drafting and proposing a new constitution. Article 133 of the current Constitution required that “the Convention shall approve the provisions [of the draft constitution] and its voting rules by a quorum of two-thirds of its members in office.” The amendment also states that the Convention “may not alter the quorum or procedures for its operation and for the adoption of agreements.” Article 135 prohibits the Convention from claiming the “exercise of sovereignty” by “assuming other powers than those expressly recognized by this Constitution.” In other words, the Convention could not usurp the powers of the government, such as legislating, executing, or applying the law. In drafting these provisions, the Congress had in mind previous experiences in the region, specifically in Venezuela and Ecuador, where constitutional conventions claimed they were sovereign, outside all law, and had purged the governments. For these reasons, many have argued that the Chilean process is a legal one based on an aversion to the Bolivarian model of Venezuela or Ecuador.[1]

We call attention to three possible infringements on these rules. First, the Convention approved its voting rules by a majority vote, not the 2/3 required by Article 133 of the Constitution. This is perhaps the clearest infringement.[2]  But what’s remarkable is even as the Convention used majority vote to approve the rules, they set super-majoritarian rules blunting the radicalism of the gesture. The second infringement concerns the voting threshold for the approval of the provisions of the Constitution. There would now be two routes to approving a provision of the new constitution. The first adhered to the amended Constitution’s legal guidelines of a 2/3 vote as required by the Constitution. But a new second route would allow provisions that could not meet the 2/3 threshold but were able to garner in a second vote the approval of 3/5 of the members to go to a binding referendum or plebiscito dirimente.[3] However, the alteration may not be illegal as many supporters of the change say for a binding referendum to be effective, the Constitution would have to be amended. Such an amendment would make the referendum perfectly legal. Lastly, Article 1 of the general regulation states that the Convention has “an autonomous nature” and is “convened by the people to exercise original constituent power.” This claim signifies the Convention no longer believes that its authority derives from the amendments to the Constitution, but from the people themselves.[4]

In this blog post, we examine the theoretical conundrums raised by the Convention’s actions. First, we explore the pattern of constitutional conventions violating their pre-set rules. Second, we argue that Chile departs from the pattern in one respect because this current violation was unnecessary for the achievement of a new constitution.[5] Lastly, we distinguish sovereignty from autonomy to cast doubt on whether this is a prelude to the Convention usurping the other branch’s powers as occurred infamously in the creations of the 1999 Venezuelan and the 2008 Ecuadorian Constitutions. 

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Published on November 2, 2021
Author:          Filed under: Developments
 

What’s New in Public Law


Robert Rybski, Assistant Professor at the Faculty of Law and Administration of the University of Warsaw, Rector’s Plenipotentiary for Environment and Sustainable Development.


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Court of Justice of the European Union ordered Poland to pay the European Commission a daily penalty of one million EUR for each day of further functioning of the Disciplinary Chamber of the Supreme Court.
  2. The Constitutional Court of Spain declared 6:4 the second pandemic state of alarm unconstitutional on the grounds of illegally overtaking some of the powers from local authorities.
  3. The Supreme Court of the United States agreed to hear additional cases against the Texas anti-abortion law (Texas Senate Bill 8) but refused to grant an immediate relief.
  4. The Supreme Court of India ruled that mere support given to a terrorist organisation or mere association with it is not sufficient to attract offences in case of which bail cannot be granted.
  5. The Constitutional Court of South Africa declared unconstitutional provisions that allowed police forces warrantless searches of persons, homes and gave the power to seize objects in possession of those searched.
  6. The Constitutional Court of Malta rejected the freezing order imposed on former Chief of Staff to Malta’s PM and his businesses.

In the News

  1. The president of Brazil was accused of crimes against humanity in Brazil for handling the COVID-19 pandemic.
  2. The president of Turkey reversed his position and decided not to expel ten ambassadors that issued a statement calling for the release of jailed philanthropist Osman Kavala.
  3. A state of emergency was introduced in Sudan after the military took over the power from the transitional government (that already shared the power between civilian and military leaders).
  4. This Sunday, the 26th annual UN climate summit began in Glasgow (COP26), with the disparity between emerging countries and OECD members even bigger in the national outputs on tackling climate change.
  5. Deans of Law Faculties of Polish Universities issued a joint statement against the Constitutional Tribunal’s judgment of 7 October 2021 that concerned EU law supremacy.
  6. The year 2021 had already more coups than the previous five years combined.
  7. Turkish Justice Minister confirmed that preparations for a new constitution are underway.

New Scholarship

  1. David Kosar & Ladislav Vyhnánek, The Constitution of Czechia. A Contextual Analysis (2021) (providing a contextual and authoritative overview of the principles, doctrines and institutions that underpin the Czech constitution)
  2. Charmaine Rodrigues, Legal Approaches to Responding to Emergencies: Covid-19 as a Case Study, Constitutional INSIGHTS 6 (2021) (examining the use of power within the Covid-19 emergency by countries of the Indo-Pacific region)
  3. Cheryl Saunders, How Federations Responded to Covid-19, Constitutional INSIGHTS 7 (2021) (discussing how federations across the world responded to the Covid-19 pandemic)
  4. Tom Gerald Daly, Beyond Representation in Pandemic Responses: Independent and International Institutions, Constitutional INSIGHTS 8 (2021) (presenting how governments dealt with the pandemic in Fiji, Sri Lanka and Taiwan, as well as the roles of international actors in those places)
  5. Sabrina Roettger-Wirtz, The Interplay of Global Standards and EU Pharmaceutical Regulation. The International Council for Harmonisation (2021) (analysing the implementation of global pharmaceutical impact standards in the European risk regulation framework for pharmaceuticals and questions its legitimacy)

Calls for Papers and Announcements

  1. Young Legal Researchers Conference will be held at the University Hasselt, Faculty of Law, on 17 December 2021. The central theme of this edition will be “Building societal resilience through law”. PhD researchers are invited to approach this central theme from their specific field of research in a presentation. The deadline for submitting abstracts is 19 November 2021.
  2. Faculty of Law and Criminology – Ghent University invites initial submissions of abstracts by 30 November 2021 for “Expert Seminar on Intensity of Review in Public Law” that will be held on 29 April 2022 at the premises of Ghent University.
  3. Exploratory workshop “The shared management of EU funds in comparative perspective” will be held in a hybrid form in Brussels on 28 & 29 April 2022. The deadline for abstracts, ideas or expressions of interest is by 30 November 2021.
  4. Constitution Transformation Network (University of Melbourne) and International IDEA co-organise on 2 & 4 November a Melbourne Forum on Constitution-Building in Asia and the Pacific: ‘Democracy, Constitutions & Dealing With The World’ – in the form of four sessions across two days on the external face of constitutions including international approval of constitution-making, treaty-making, international investment and international relations.
  5. Federal Law Review invites submissions for a special issue on Equality and Public Law. The deadline for submissions is by 15 February 2022.
  6. Archbishop Desmond Tutu Centre for War and Peace Studies of the Liverpool Hope University seeks proposals for an online conference “Communication, Conflict and Peace”. Deadline for submissions is by 1 April 2022.

Elsewhere Online

  1. Stanisław Biernat & Ewa Łętowska, This Was Not Just Another Ultra Vires Judgment! Commentary to the statement of retired judges of the Constitutional Tribunal, Verfassungsblog
  2. Dinesha Samararatne, Comparative Constitutional Law, Colonialism and Empire (Part II), IACL-Blog
  3. Anna Mechlinska, When is a tribunal not a tribunal? Poland loses again as the European Court of Human Rights declares the Disciplinary Chamber not to be a tribunal established by law in Reczkowicz v. Poland, Strasbourg Observers
  4. Joy Monserrat Ochoa Martínez & Roberto Niembro Ortega, The Limits of Conscientious Objection and the Right to Abortion in Mexico,  IACL-Blog
  5. Nele Schuldt, Third-Party Intervention in Pending Climate Case: The Human Rights Centre of Ghent University submits comments in Klimaseniorinnen v. Switzerland, Strasbourg Observers
  6. Alexandra Tomaselli, A New Beginning? Indigenous Peoples in Chile After Its Bicentenary, IACL-Blog
  7. Šimon Drugda, Dataset on constitutional change in Slovakia 1993-2020, slovakconlaw
  8. Pierre de Vos, A brief history of MR Jacob Zuma’s attempts to prevent the public from hearing the State’s evidence against him, Constitutionally Speaking
  9. Tanmay Singh, Anandita Mishra & Krishnesh Bapat, Why don’t they just stop stopping the internet? The curious case of India’s internet shutdowns, Verfassungsblog
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Published on November 1, 2021
Author:          Filed under: Developments
 

France | 2020 Developments in Constitutional Law


Corinne Luquiens, Member of the Constitutional Council; Nefeli Lefkopoulou, PhD Candidate at Sciences Po Law School; Eirini Tsoumani, PhD Candidate at Sciences Po Law School; Guillaume Tusseau, Professor of Public Law at Sciences Po Law School


I. Introduction

As in many other countries, the pandemic dominated French constitutional politics in 2020. Three major events may nevertheless seem to be rather independent from it. The first is the adoption of a reform of the pensions system by the National Assembly. For the first time under President Macron, Prime Minister Edouard Philippe decided to overcome parliamentary filibustering by resorting to Article 49, Section 3 of the Constitution. This provision allows him, after deliberation by the Council of Ministers, to make the passing of a Bill an issue of confidence before the National Assembly. In that event, the Bill shall be considered passed unless a motion of no-confidence is adopted. Two motions of no-confidence were tabled by the left and the right oppositions, but both were rejected in March, leading to the adoption of a most controversial reform. The second event is related to the Citizens’ Climate Convention. 150 citizens were selected by lot to make proposals in order to identify measures to reduce greenhouse gas emissions that would be consistent with social justice. President Macron promised to follow all the recommendations resulting from this unique participative process and to translate them into law. One of the 149 recommendations calls for a constitutional amendment that would introduce climate defence and environmental preservation in Article 1 of the Constitution. President Macron declared his intention to have this amendment put to a referendum after its adoption by the two houses of Parliament. However, a constitutional amendment is not so easy, as the third and last element proves. Because the conditions for it could not be met in order to convert the Economic, Social, and Environmental Council (ESEC) into a Council of Citizen Participation, most of the reform had to be achieved through an amendment of the ESEC’s organic act, which is easier to pass. Yet, most of what took place in 2020 was influenced by the Covid crisis and the debates it prompted regarding the Executive’s action. Of the local elections that had to take place in March, only the first round could be organised, the second being postponed until June. The turnout was quite low, and led to results that confirmed the difficulties of the President’s party, while ecologist forces gained ground. The ensuing partial renewal of the Senate, which represents territorial communities, confirmed the hold the right had on the majority. On July 3rd, the Prime Minister tendered his resignation, and Jean Castex was appointed President Macron’s next Prime Minister.

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Published on October 29, 2021
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The Contingent Role of the Basic Structure Doctrine for Constitutionalism in Africa

Berihun Adugna Gebeye, Humboldt Postdoctoral Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

Kenyan courts’ use of the basic structure doctrine to strike down President Uhuru Kenyatta’s the Constitution of Kenya Amendment Bill 2020 as unconstitutional has attracted many reactions both in Kenya and abroad. We have seen extremely rich arguments about the basic structure doctrine in Kenya both in the High Court and the Court of Appeal where the doctrine is found to be applicable. We will see similar interesting arguments at the Supreme Court for one last time as this court decides on President Kenyatta’s constitutional amendment proposal once and for all. But in this post, I will examine the contingent role of the basic structure doctrine for constitutionalism and democracy in Africa more generally.

The basic structure doctrine, in its classic formulation, provides that regardless of the existence or absence of an express limitation, there is an implied and substantive limitation to a constitutional amendment, the objective of which is to protect the “basic structure” or the “core element” of a constitution.[1] Thus, some aspects of a constitution are unamendable and that these aspects could be changed only through a mechanism outside of the constitution.[2] At the risk of over simplification, the theoretical origin of the doctrine is associated with some conceptions of constituent power, its legal and/or practical relevance is associated with the protection of the democratic constitutional state, and its effect is related to maintaining the core constitutional dispensation in a polity. And its major operating assumptions lie in its commitment to the classic statist constitutionalism, its consideration of the constitution as a legitimate and a true reflection of the will of the people, and its consideration of the state and the people as sovereign actors both as a matter of theory and empirical reality.

A judicial doctrine that could maintain these constitutional and democratic circumstances and sustain these assumptions is indeed worth defending and exporting. While the German professor Dietrich Conrad was instrumental in bringing in the basic structure doctrine to the attention of Indian lawyers, the acceptance and further development of the doctrine there may have to do with the way in which self-government and democracy were constituted at the dawn of British colonialism as Madhav Khosla shows in India’s Founding Moment, how ordinary people see and attribute meaning to the Constitution and argue with it asRohit De demonstrates in A People’s Constitution, and the popular or institutional belief in the transformative capacity of the Constitution as Gautam Bhatia writes in the Transformative Constitution. All these contextual factors show that, in addition to the contestations around the nature and structure of constituent power that form the substantial part of the basic structure doctrine literature, the material conditions in which the constituent power exists and operates, and the nature of the polity under consideration are key determinants whether we should apply the basic structure doctrine or not. And if we decide to apply it, to what extent and how. Here lies the contingent role of the basic structure doctrine in the African context.

First, every constitution may have a basic structure, but all basic structures may not be worth defending or preserving. There may be a basic structure that should be changed in as much as there may be a basic structure that should be safeguarded. And this has nothing to do with the doctrine as such, but with its theoretical assumptions and widely held objectives. As Yaniv Roznai, one of the leading scholars on the subject, observed the doctrine is mainly applicable to democratic constitutions, which in practice regulate and limit power, protect rights, and effectuate the rule of law, not to sham constitutions.[3] But whether a certain constitution is sham or not is predominantly an empirical question.[4] For example, whether a constitution is a genuine expression of the will of the people or rather an expression of the will of the elites, or even the will of some of the elites? Whether it practically regulates the behavior of institutions, leaders, and citizens or it is a legitimation tool for maintaining the interests of the few, not the many? These are empirical questions whose answers are largely to be found outside of the constitution.

Before applying the basic structure doctrine, then, we must conclude that the constitution under consideration is not sham: a determination relatively easy for legal scholars but extremely difficult, if not impossible, for judges who derive their position and authority from said constitutions they promise to uphold and enforce. Consider, for example, the 1995 Constitution of Ethiopia and the 1999 Constitution of Nigeria where a particular elite – former rebel armed groups in the case of the former and the military in the case of the latter – imposed a constitution over the people, but at the same time disregard constitutional rules at will, violate rights, and undermine the rule of law.[5] In these circumstances, the application of the basic structure doctrine would prevent constitutional and democratic development and simply maintain the elite’s grip on power over the people. As Rosalind Dixon and David Landau show in their new book, Abusive Constitutional Borrowing, the basic structure doctrine could become part of the toolkit of abusive constitutionalism that subverts the democratic transition and consolidation in many parts of Africa.  

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Published on October 28, 2021
Author:          Filed under: Analysis
 

ICON’s Latest Issue: Table of Contents

Volume 19 Issue 3

Table of Contents

Letters to the Editors

The population and the individual, David McGrogan

Unequal impact, Stephen F. Ross

Editorial

I•CON: Foreword!

Karen J. Alter, From colonial to multilateral international law: A global capitalism and law investigation

This Foreword integrates international law, international relations, and global history scholarship to understand two global trends that are in tension with each other: (i) the shift from European colonial dominance to a law-based multilateralism, which enabled a more equal and inclusive international law, and (ii) global capitalism which, across time, has been a political and economic force that, left to its own devices, promotes exclusion and inequality. Alter builds an encompassing conception of global economic law to show the interplay of colonial law, private law, domestic law, and international law in enabling and constraining global capitalism across time. The investigation looks backwards so as to think forward. The larger goal of the endeavor is to imagine how an Asian law-based capitalism might continue past trends and recreate continuities despite a professed desire to be different. Just as capitalism once locked in colonial features despite the shift to multilateral international law, multilateralism and capitalism may be forces that sustain the very features of the Western Liberal International Order that China seeks to move beyond.

Articles

Michael D. Gilbert, Mauricio Guim, and Michael Weisbuch, Constitutional locks

Legal designers use different mechanisms to entrench constitutions. This article studies one mechanism that has received little attention: constitutional “locks,” or forced waiting periods for amendments. We begin by presenting a global survey, which reveals that locks appear in sixty-seven national constitutions. They vary in length from nine days to six years, and they vary in reach, with some countries “locking” their entire constitution and others locking only select parts. After presenting the survey, we consider rationales for locks. Scholars tend to lump locks with other tools of entrenchment, such as bicameralism and supermajority rule, but we argue that locks have distinct and interesting features. Specifically, we theorize that locks can cool passions better than other entrenchment mechanisms, promote principled deliberation by placing lawmakers behind a veil of ignorance, and protect minority groups by creating space for political bargaining. Legislators cannot work around locks, and because locks are simple and transparent, lawmakers cannot “break” them without drawing attention. For these reasons, we theorize that locks facilitate constitutional credibility and self-enforcement, perhaps better than other entrenchment mechanisms.

Soledad Bertelsen, A margin for the margin of appreciation: Deference in the Inter-American Court of Human Rights

Despite its extended criticism, is there any room for the margin of appreciation in the Inter-American Human Rights System? The article claims there is, if we ground the doctrine in the principle of subsidiarity. This principle gives a solid foundation to the margin of appreciation and shows that the doctrine does not respond to an exclusively European reality. It also helps to identify the factors that determine the width of the margin given to the states and how they interact with each other: the absence or presence of absolute rights, the quality of the domestic judiciary, and the need for a closer participation of the community and the expertise of the state. These conditions are analyzed in the light of the case law of the inter-American human rights system. The article explores the proper role of the margin of appreciation within human rights adjudication and its compatibility with the doctrine of conventionality control developed by the Inter-American Court of Human Rights.

Martijn van den Brink, The European Union’s demoicratic legislature

In important areas of EU law, the principal law-making institution is the Court of Justice of the European Union and not the EU legislature. This article criticizes the current allocation of power between both institutions and the different conceptions of political legitimacy that have been developed to justify it. The Court’s authority has been justified on the basis of output-oriented conceptions of political legitimacy that ground legitimacy in the kind of outcomes political institutions produce. This article argues that the different standards of output-legitimacy used are important but insufficient to legitimize EU institutions. Only input-oriented legitimacy can serve as a sufficiently strong form of legitimacy for the EU. More concretely, the article argues that the EU must be assessed by demoicratic standards of legitimacy. Unlike output-oriented theories of political legitimacy, which justify the transfer of authority from the EU legislature to the Court, a demoicratic conception of political legitimacy weighs in favor of legislative decision-making. This article explores whether it is possible to improve the political status of the EU legislature without Treaty amendment.

Rafael Macía Briedis, Constitutional self-negation in Venezuela: Problematizing constitutionalism’s internalization of the theory of constituent power

The article looks at the constitutional underpinnings of the political crisis that has unfolded in Venezuela (around the competing claims to the presidency by Juan Guaidó and Nicolás Maduro), in an effort to understand the structural elements that have enabled that crisis. The central argument of the article is that Venezuela presents an example of “self-negating constitutionalism.” A self-negating constitution is one that, by negating its own position as the exclusive, self-contained source of democratic authorization for a given polity, ultimately ceases to serve as the last instance for the adjudication of institutional conflicts, including conflicts about the proper locus of representation of the “sovereign” demos, thereby undermining the constitutional structure in its entirety and replacing the rule of law with extralegal power as the mechanism for the resolution of political disputes. As the paper will show, this is precisely what the Venezuelan Constitution has done by outsourcing the competency to “transform the state” to an institution supposedly authorized by the people’s “original constituent power.”

Symposium: Constitutional Experiments in Latin America

Joel I. Colón-Ríos, Constitutional experimentation

Johanna Frohlich, More flexibility in favor of constitutional stability? What breaking amendment rules in Ecuador can teach us

Latin America has provided a fertile ground for constitutional experimentation. The Ecuadorean Constitution of 2008 purported to change the entire liberal constitutional model and replace it with one in which indigenous concepts from the Andean region are central. At the same time, the constitutionalization of the legal order was not repudiated, and a reinforced procedure for constitutional amendments was still included. It seems, however, that even an extended rights catalogue and reinforced amendment procedures could fail to induce a real paradigm change if the commitment to protect the constitution as higher law is missing. The present article seeks to show that more flexible amendment rules might foster the rule of law and stability better than those that are unrealistic or bluntly ideological, especially where the value of constitution-as-higher-law is not authentically reflected in the governed society. In these cases, flexible amendment rules could help restore trust in law’s authority and constitutional institutions, and they could also assist in guiding political actions under the guise of law, instead of surrendering them to a mere political power struggle. Building on the experience of a series of constitutional substitutions from Ecuador’s three main constitutional phases, the article strives to enrich our understanding of issues related to amendment difficulty, institutional design, and constitutional culture.

Andrea Scoseria Katz, La Suiza de América: Direct democracy, anti-presidentialism, and constitutional entrenchment in Uruguay’s Constitution of 1918 FREE

In Latin America, the drafters of early nineteenth-century constitutions were skeptical of implementing republican forms of government. Uruguay was an exception. Under the Swiss-educated reformist José Batlle y Ordóñez (1904–7, 1911–15), the groundwork was laid for a new constitution that would bring about a secular democratic republic. Indeed, the 1918 Constitution replaced a conservative and centralist constitutional system with a plural executive and a regime of participatory democracy. This article advances a new interpretation of Batllista Uruguay’s distinctive institutions and argues that, despite the 1918 Constitution’s brief endurance, Uruguay’s distinctly republican form of democracy may be an effective mechanism for constitutional entrenchment where it helps to create popular support for the rule of law and institutional stability.

Vicente F. Benítez-R., “With a little help from the people”: Actio popularis and the politics of judicial review of constitutional amendments in Colombia 1955-90

This article examines the reasons behind the consolidation of the Supreme Court of Colombia’s authority during the second half of the twentieth century as the ultimate umpire of amendments’ constitutionality. After analyzing the case law of the Supreme Court between 1955 and 1990 and the political environment in which it rendered its decisions, the article claims that the Court managed to cement its power to review amendments thanks to the presence of a novel constitutional experiment, as well as to the existence of certain political conditions. With respect to the first factor, an actio popularis (by which any citizen had the right to petition the Court and challenge the constitutionality of legislation) granted the Supreme Court a constant flow of cases that allowed it to entertain and adjudicate on citizens’ petitions questioning the constitutionality of amendments. Regarding the latter factor, democracy and a political pluralism gave the Court some room to quietly consolidate its jurisdiction to review amendments and, eventually, quash some of them. The article concludes with a cautionary note on the success of actio popularis and the doctrine of unconstitutional constitutional amendments as deployed by the Supreme Court.

Mariana Velasco-Rivera, Constitutional rigidity: The Mexican experiment

The constitutional amendment mechanism of the Mexican Constitution of 1857 (reproduced in the Constitution of 1917) and Article V of the US Constitution are very similar in design. Both require a two-third majority of each of the houses of a bicameral Congress and ratification by the states (half of the state legislatures in Mexico and three-fourths in the United States). Both articles were the result of an experiment aiming at striking the right balance between rigidity and flexibility. Yet, while characterized by similar levels of formal rigidity, these experiments have had the exact opposite effect. While the US Constitution has been described as one of the world’s most rigid and has only been amended twenty-seven times, the Mexican Constitution of 1917 has gone through over 700 amendments. Why are the amendment rates so divergent? This article argues that Mexico’s amendment practice offers an opportunity to deepen our knowledge about how non-institutional factors condition the way amendment provisions work and, thus, to dispel the idea that amendment difficulty is institutionally determined. In particular, there are at least three lessons that may be drawn from the Mexican case: (i) constitutional scholarship needs to shift its attention to political parties and party systems; (ii) unwritten rules influencing the behavior of party members need further study; and (iii) we must carefully look at the agency of constitutional decision-makers, specifically regarding the choices they make among different means to advance their interests and agendas.

Sergio Verdugo, How can constitutional review experiments fail? Lessons from the Chilean 1925 Constitution

Constitutional designers establishing a new judicial review mechanism can fail to make that mechanism a relevant instrument for checking the power of incumbent legislators or presidents. Judges may refuse to exercise their newly established powers, politicians may refuse to obey their rulings, or the judiciary may be packed, among other possible reasons. The causes can be attributed to the existence of a dominant party system, the lack of political competition, problems of institutional design, or judicial culture. This article contributes to the understanding of this problem by exploring the failed constitutional mechanism that Chilean constitutional designers established in 1925. The 1925 Chilean Constitution established the power of judicial review of legislation for the first time in Chile’s history, but the Supreme Court generally avoided to be involved in political battles. Chile had a competitive political system with frequent and regular rotation in power. The literature claims that, under these conditions, we should expect judges to be more independent and empowered, but this is not what happened in the Chilean case. Scholars studying this period of Chilean constitutional history generally associate the passivity of the Supreme Court with a legalistic culture promoting an apolitical and formalistic judicial behavior. This article claims that the narrative of judicial apoliticism served to justify, and perhaps to persuade, the Supreme Court’s choice not to intervene in politics, but more attention needs to be given to the institutional weaknesses of the judiciary of that time and to the possible strategic judicial choice.

Karina Denari Gomes de Mattos, “We the prosecutors”: Challenges to social participation in Brazilian public law litigation

The Brazilian Ministério Público (MP) is an agency that aims to monitor the enforcement of criminal law, prosecuting wherever necessary, in addition to protecting relevant collective goods, such as those included in consumer and environmental regulations. These latter types of powers—established for the first time in the 1934 Constitution and consolidated in the 1988 Constitution—are uncommon from a comparative perspective. Although at first glance they could be seen to be useful for enforcing important principles and fundamental rights, I argue that the gradual empowerment of the MP could potentially have damaged civil society associations’ (CSAs) capacity for legal mobilization, since the areas of competence of this legal institution largely overlap with the niche in which civil society advocacy organizations operate. The experimentalist constitutional design combined with the gradual activist behavior from its members, have positioned the MP as perhaps one of the major institutional guardians of the public interest after Brazil’s re-democratization. I conclude by suggesting that the MP should develop strategies to enhance the representativeness and effectiveness of CSAs by engaging in a fruitful dialogue with them, including the monitoring of those cases once they leave the courtroom. In turn, CSAs also have strategic incentives to align with the MP, mainly to withstand current judicial skepticism about its institutional capacity for public law litigation.

ICON: Debate!

Maxime St.-Hilaire, Audit culture of human rights as “governmentality”?

The sway of audit culture over the field of international human rights law is clear to those familiar with human rights reports and indicators. In his 2019 I•CON Best Paper Prize-winning article, David McGrogan argues that the reason for that controlling influence is found in ineluctable characteristics of the international human rights system. As for its main consequence, he argues that Foucault’s idea of “governmentality” enables us to see that it is the “diametrically opposite effect” to the construction of a homo juridicus. In this short response, I will confine myself to a critical appraisal of the Foucauldian argument for the latter claim.

ICON: Debate!

Yun-chien Chang and Xin Dai, The limited usefulness of the proportionality principle

The proportionality principle is used in constitutional law and administrative law worldwide. We argue that this doctrinal method is theoretically flawed and often practically not useful. Our major arguments are that, first, the proportionality principle is an ill-suited tool for legislative and administrative decision-making, because it is, in essence, an incomplete form of cost-benefit analysis, as it systematically ignores certain costs and benefits. Welfare-maximizing measures, as a result, may fail to pass the test of proportionality analysis. Second, representative of legal scholars’ efforts to theorize proportionality, the German theorist Robert Alexy’s influential Paretian formulation of the proportionality principle makes it either toothless or fatal. Alexy’s weight formula is not useful in comparing multiple means. Third, the use of the proportionality principle for constitutional review by courts may create an undesirable ex ante effect and may fall prey to its inherent loss aversion which cannot be easily avoided through re-framing.

Anne Peters, A plea for proportionality: A reply to Yun-chien Chang and Xin Dai

After a survey of the proportionality principle and its discontents (irrationality, conceptual flaws, and bias), this article addresses the dual remedy proposed by proportionality critics, which consists in: (i) skipping the first to third prongs of the proportionality analysis (legitimate objective, suitability, and necessity) and (2) concentrating on balancing in the metric form of a cost-benefit analysis. I argue that discarding the three prongs, and thus abandoning the asymmetrical structure of the sequential proportionality analysis, would kill off the specific quality and function of rights which is to constitute a special protection that triggers the obligation to explain and justify interference. Although recent empirical studies have demonstrated that the proportionality test indeed does not deliver predictable legal outcomes, a simple cost-benefit analysis is worse. It would not secure more reliable outcomes either but only offers a sham-rationality. Assigning numbers to the goods and interests at stake cannot replace the work of a multidimensional assessment and argumentative explanation in natural language which is needed for making not only a sound, but also a transparent and thus contestable decision. What legal life needs is a culture of justification, not a culture of calculation.

Cristóbal Caviedes and Francisco J. Urbina, Cost-Benefit analysis in rights adjudication—An assessment in light of the proportionality debate: A reply to Yun-chien Chang and Xin Dai

In this article, we analyze Yu-chien Chang and Yin Dai’s proposal for replacing the proportionality test with cost-benefit analysis in their article “The Limited Usefulness of the Proportionality Principle.” We assess this proposal by considering the objections generally raised against the proportionality test. We claim that such objections also apply to cost-benefit analysis, thus raising concerns about its adequacy for rights adjudication.

Review Essay

Alvin Y.H. Cheung,  Unpalatable realities, no choices. Review of Cora Chan and Fiona de Londras (eds), China’s National Security: Endangering Hong Kong’s Rule of Law?;  Albert H.Y. Chen, The Changing Legal Orders in Hong Kong and Mainland China

Book Reviews

Rachael Walsh, Review of Hélène Landemore, Open Democracy: Reinventing Popular Rule for the Twenty-First Century

Edward Willis, Review of Brian Christopher Jones, Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness

Katarzyna Krzyżanowska, Review of Ágúst Þór Árnason and Catherine Dupré (eds), Icelandic Constitutional Reform. People, Processes, Politics

Donald Bello Hutt, Review of Joel Colón-Ríos, Constituent Power and the Law

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Published on October 26, 2021
Author:          Filed under: Editorials
 

What’s New in Public Law


Bárbara da Rosa Lazarotto, Master Student at the University of Minho – Portugal; Researcher at the International Legal Research Group on Human Rights and Technology of the European Law Students Association – ELSA.


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

1. The US Supreme Court declined to block a vaccine requirement imposed on Maine health care workers.

2. The European Court of Human Rights condemned a Turkish law that bans insults against President Recep Tayyip Erdoğan. The Court issued this opinion in a case of a man who was convicted of publishing two caricatures of the Turkish President on Facebook.

3. The French Constitutional Court rejected to review a French law that transposed the Convention Implementing the Schengen Agreement and Directive 2001/51. The Court ruled that it is not competent to conduct such a review.

In the News

1. The head of the European Council Ursula von der Leyen said that the recent ruling by Poland’s Supreme Court is a direct challenge to the unity of the bloc.

2. The Portuguese Parliament elected on October 1st four new judges for the Constitutional Court of Portugal that will substitute four justices whose mandates ended in June.

3. The US Justice Department formally asked the Supreme Court to block the controversial Texas law that banned abortions after six weeks of pregnancy.

4. A coalition of NGO’s and indigenous organizations challenged a presidential act at the Constitutional Court of Ecuador, which aims to double petrol production in the country, arguing that this act violates international rights of indigenous people to previous consultation and other collective rights.

5. The President of Ecuador declared a state of emergency for 60 days in the whole country due to extreme violence enacted by drug dealers.

6. The United Kingdom justice secretary Dominic Raab stated that the UK plans to create a mechanism to “correct” judgments issued by the European Court of Human Rights.

7. A report released by the Brazilian Senate Committee has recommended that President Jair Bolsonaro be indicted on ten charges, including crimes against humanity.

8. The Senate of Brazil approved a constitutional amendment that codifies the fundamental right to the protection of personal data.

New Scholarship

1. Raphaël Girard, Accountability, Populism and Expertise: The UK Government’s Response to Covid-19, Public Law 4 (2021) (questioning the perceived or assumed dichotomy between populism and expertise in a case study of the UK government’s response to the Covid-19 pandemic).

2. The Revista Derecho del Estado issued its special number in tribute to Roberto Gargarella, discussing the “XXII Jornadas de Derecho Constitucional” it is on open access.

3. Ronald M. Levin, The Evolving APA and the Originalist Challenge, 97 Chicago-Kent Law Review 1 (2021) (examining the manifold ways courts have creatively interpreted the APA’s provisions on rulemaking, adjudication, and judicial review).

4. Dan Yosipovitch, Adopting a Legislative Approach for Data in the Fourth Amendment: Defining Personal Data as An “Effect” (2021) (addressing the need to recognize a property-based right in personal data and to limit the amount of personal information that can be lawfully collected about individuals online).

Calls for Papers and Announcements

1. The Asser Institute invites abstracts to the topic “Law and ethics of artificial intelligence in the public sector: From principles to practice and policy” for an interdisciplinary conference that will take place on 10-11 March 2022 at the Asser Institute in The Hague.

2. The University of Externado of Colombia announces its XXII Journey of Constitutional Law, which will take place on 21-22 of October in Bogotá. Applications can be made here.

3. The Instituto Iberoamericano de Derecho Constitucional opens call for papers for the Revista de Derecho Constitutional n. º 3. Deadline for submissions is 20 November 2021.

4. The 10th Edition of Privacy Camp is open for panels. It will be about ways to advance human rights in the digital society. The deadline for proposal submissions is 7 November 2021.

5. The Rajiv Gandhi National University of Law (RGNUL) invites papers for Volume 1 & 2, 2021 of RGNUL Law Review. The deadline for submissions is 30 November 2021.

6. The Journal of Islamic Law at Harvard Law School accepts papers on racial justice and equality. The deadline for submissions is 1 November 2021.

Elsewhere Online

1. Lidia Dutkiewicz, From the DSA to Media Data Space: the possible solutions for the access to platforms’ data to tackle disinformation, European Law Blog

2. Joel Reardon, Emily Laidlaw and Greg Hagen, COVID-19 and Cellphone Surveillance, Double Aspect

3. Dinesha Samarantne, Comparative Constitutional Law, Colonialism and Empire (Part I), IACL-AIDC Blog

4. Marcus, Klamert, Rationalizing Supremacy, Verfassungsblog

5. Alex Walker, The draft Online Safety Bill: abandoning democracy to disinformation, The Constitution Unit Blog

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Published on October 25, 2021
Author:          Filed under: Developments
 

Global Fellowship Applications for New York University School of Law | Now Available for the 2022-23 Academic Year

New York University School of Law is currently accepting applications for the following fellowships:

Emile Noël Fellowship Program

Deadline: January 15, 2022

The principal objective of the Emile Noël Fellowship program is scholarship and the advancement of research on the themes prioritized by the Jean Monnet Center for International and Regional Economic Law & Justice, which include the following overarching areas: European Integration, general issues of International (principally WTO), and Regional Economic Law and Justice and Comparative Constitutional Law. The expectation is that the residency of our Fellows at NYU School of Law will result in at least one paper that will be of sufficient quality to be published as a Jean Monnet Working Paper. During the period of residence, we encourage our Fellows to participate fully in the life of the Law School and of NYU in general, not to mention the endless possibilities that New York City has to offer. The Fellows will be expected to play an active role in the activities of the Center, particularly the Global/Emile Noël Fellows Forum, which is the vehicle through which work is presented and discussed, and encapsulates the idea of the Program – the University as a community of scholars. The Forum takes place on a regular basis throughout the fall and spring semesters.

The Jean Monnet Center at NYU School of Law currently offers fellowship opportunities for scholars in the following categories:

1.  Global & Senior Global Emile Noël Research Fellows

Global Emile Noël Research Fellows are post-doctoral or tenured academics with a demonstrable background of legal scholarship.  More senior academics (for example, faculty members tenured for ten years or more) at the discretion of the selection committee may be designated as Senior Global Emile Noël Research Fellows.

2. Global Emile Noël Fellows from Practice and Government

Global Emile Noël Fellowships are also open to government officials, judges, officials from international organizations and lawyers in private practice who wish to take a semester or academic year away from their posts to engage in serious scholarship.

3. Post-Doctoral Global Emile Noël Fellows

Post-Doctoral Global Emile Noël Fellows are post-doctoral scholars who have attained their doctoral degrees within the past four years and who have not yet secured a tenure-track academic appointment at an institution.  Post-Doctoral Global Emile Noël Fellows meeting these eligibility requirements may be considered for a limited number of merit-based post-doctoral stipends, ranging from US$30,000 to US$45,000 for the academic year (or from US$15,000 to US$22,500 per academic semester), subject to applicable tax(es). 

For an overview of Program eligibility and other guidelines and to apply, please visit the Emile Noël Fellowship Program Overview page.

Global Fellows Program

Deadline: January 15, 2022                   

The Global Fellows Program offers an opportunity for academics, practitioners, government officials and post-doctoral scholars from around the world to spend a semester or academic year in residence at NYU School of Law.  The principal objective of the Global Fellows Program is the production of scholarship through the advancement of research. We have a notable history of hosting distinguished scholars, judges, lawyers and government officials who wish to spend time advancing their scholarship and engaging in the intellectual life of the Law School.  Fellows are welcome to participate in academic activities such as fora, lectures, colloquia, seminars and conferences. They are also invited to various social events, including some organized specifically for Global Fellows and others aimed at the broader community.

Through the Global/Emile Noël Fellows Forums, Global Fellows share their research with colleagues, students and faculty and receive comment and feedback.  In this way, they contribute to the intellectual life of the Law School and provide an opportunity for the community to learn about current law research from a global perspective and in a wide range of topics.  The primary goal of the Global Fellows Program is the enhancement of research and it is expected that participation in the Program will result in a substantial publishable piece of scholarship.

In recent years, we have introduced a specialized post-doctoral programming component designed especially for our Post-Doctoral Global Fellows (fellows who have attained their doctoral degrees within the past four years and who have not yet secured a tenure-track academic appointment at an institution), in partnership with the JSD program, to provide opportunities for the exploration of methodological questions in legal research and for participating in workshops where works-in-progress may be presented. 

The Global Fellows Program currently offers fellowship opportunities for scholars in the following categories:

1.  Global and Senior Global Research Fellows

Global Research Fellows are tenured or tenure-track academics with a demonstrable background of strong legal scholarship.  More senior academics (for example, faculty members tenured for ten years or more) may be designated as Senior Global Research Fellows at the discretion of the selection committee. 

2. Global and Senior Global Fellows from Practice & Government

Global Fellows from Practice & Government are government officials, judges, officials from international organizations and lawyers in private practice who wish to take a semester or academic year away from their posts to engage in serious scholarship.  More experienced officials and practitioners may be designated as Senior Global Fellows from Practice & Government at the discretion of the selection committee. 

3. Post-Doctoral Global Fellows

Post-Doctoral Global Fellows are post-doctoral scholars who have attained their doctoral degrees within the past four years and who have not yet secured a tenure-track academic appointment at an institution.  Post-Doctoral Global Fellows meeting these eligibility requirements may be considered for a limited number of merit-based post-doctoral stipends, ranging from US$30,000 to US$45,000 for the academic year (or from US$15,000 to US$22,500 per academic semester), subject to applicable tax(es). 

For an overview of Program eligibility and other guidelines and to apply, please visit the Global Fellows Program Overview page.

Visiting Doctoral Researcher Program

Deadline: February 15, 2022

Visiting Doctoral Researchers are doctoral candidates enrolled in a doctoral degree program at another institution abroad who wish to benefit from spending one year of their research at NYU School of Law. They will be fully integrated into the JSD program as far as is relevant. The JSD program invites approximately five to six Visiting Doctoral Researchers each academic year to contribute to the Visiting Doctoral Researcher position.

The Visiting Doctoral Researchers are actively integrated into the Law School community through various academic and social programs, including an invitation to participate in the JSD Colloquium where they may present their research.

For an overview of Program eligibility and other guidelines and to apply, please visit the Visiting Doctoral Researcher Program Overview page.

All applications and materials must arrive by the respective deadline dates. 

Questions about the Global Fellows Program should be directed to: law.global@nyu.edu.

Questions about the Emile Noël Fellowships should be directed to: JeanMonnet@nyu.edu.

Questions about the Visiting Doctoral Researcher Program should be directed to: jsdcoordinator@nyu.edu.

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Published on October 21, 2021
Author:          Filed under: Developments