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Blog of the International Journal of Constitutional Law

The Rights of Rivers and Forests and Apex Court Dynamics in Colombia: On Natural and Institutional Environments (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.]

Two weeks ago, James Fowkes’ column underlined how fast climate change has become a litigable issue, and how rapidly comparative inquiry on the matter has moved from asking whether courts would intervene in it to rather deal with “the hows, the whens and the what happened thens”[1] This reminded me of several Colombian high court rulings that would surely enter this universe of developments. The first one is the Constitutional Court ruling on the Atrato River, decided in November 2016.[2] The second one is a ruling on the Amazonian Rain Forest, issued by the Civil Cassation Chamber of the Supreme Court of Justice two months ago (in April, 2018) under the Rapporteurship of Judge Luis Armando Tolosa —known for having once granted a habeas corpus to protect an Andean spectacled bear.[3]

While these rulings have been registered as relevant events in this blog or elsewhere,[4] my impression is that they have been preliminarily seen as manifestations of an idea that often raises eyebrows: the idea of nature, or of components of nature like rivers and forests, being declared legal persons and fundamental rights-holders. The presence of this ingredient would precisely justify careful analysis of these rulings in the comparative scenario. Since the assignment of rights to Earth or to Nature is a distinctive characteristic of several Latin American contemporary constitutions —though not, directly, of the Colombian Constitution of 1991— these rulings would moreover indicate that the region has definitely entered a stage marked by the actual judicial enforcement of these rights.

Without denying that declaring rivers and forests to be legal subjects may, over time, prove consequential for the evolution of the law, I want to suggest that these rulings might contain less novelty than they seem. In the rulings, the “legal subject” or the “rights holder” element pertains to the remedy, not to the standing part of the case or to its legal foundation, and the work it actually does in the context of the argument seems modest —or at any rate not weighty enough to categorially single out these rulings amidst many others. What these rulings certainly suggest, however, is that something might have changed in the dynamics between Colombian apex courts, long seen as a “train crash” between a progressive, rights-protecting Constitutional Court and two backward-looking, transformation-resistant apex Courts —the Supreme Court of Justice and the Council of State. In a time when the platforms of the two candidates contending for the Presidency in the second round have included the amendment of the Constitution to partially reform the judicial branch, this tells us something about constitutional maturity that should not be lightly dismissed.

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Published on June 13, 2018
Author:          Filed under: Developments
 

ICON’s Current Issue (Table of Contents)

Volume 16 Issue 2

Table of Contents

Editorial

I.CON Foreword

Doreen Lustig and J.H.H. Weiler, Judicial review in the contemporary world—Retrospective and prospective

Focus on Asia 

Setting the scene

Johannes Chan, A storm of unprecedented ferocity: The shrinking space of the right to political participation, peaceful demonstration and judicial independence in Hong Kong

Articles

Tarunabh Khaitan, Directive principles and the expressive accommodation of ideological dissenters

Melissa Crouch, Dictators, democrats and constitutional dialogue: Myanmar’s Constitutional Tribunal

Michael Ramsden, Judging socio-economic rights in Hong Kong

 Symposium: Constitutional rights in South Asia 

Madhav Khosla and Jamal Greene, Constitutional rights in South Asia: Introduction

Raeesa Vakil, Constitutionalizing administrative law in the Indian Supreme Court: Natural justice and fundamental rights

Moeen H. Cheema, Two steps forward one step back: The non-linear expansion of judicial power in Pakistan

Mara Malagodi, Challenges and opportunities of gender equality litigation in Nepal

Deepa Das Acevedo, Gods’ homes, men’s courts, women’s rights

Critical review of jurisprudence

Jaclyn L. Neo, Definitional questions: A critique of the definition of religion and essential practice tests to allocate constitutional protection

Yoomin Won, The role of international human rights law in South Korean constitutional court practice: An empirical study of decisions from 1988 to 2015

The I·CONnect-Clough Center 2017 global review of constitutional law

Andrew James Harding, Jaclyn L. Neo, Dian A. H. Shah, Wilson Tay Tze Vern, Malaysia: The state of liberal democracy

Moeen Cheema, Pakistan: The state of liberal democracy

Khemthong Tonsakulrungruang, Thailand: The state of liberal democracy

Book reflection

Kevin Y.L. Tan, Spectres of comparison

Review essays

Fu Hualing and Zhai Xiaobo, What makes the Chinese Constitution socialist? Review of Qin Quanhong and Ye Haobo, Socialist Constitutionalism

Maria Adele Carrai, Confucianism reconstructed: The violence of history and the making of constitutionalism in East Asia. Review of Jiang Qing. A Confucian Constitutional Order: How China’s Ancient Past Can Shape Its Political Future (edited by Daniel A. Bell & Ruiping Fan); Son Ngoc Bui. Confucian Constitutionalism in East Asia

Yasuo Hasebe, The Supreme Court of Japan, One Step Forward (but only discreetly). Review of Katsumi Chiba, Iken-Shinsa: Sono Shôten no Sadame-kata (Constitutional Review: How to Focus on Issues); Tokiyasu Fujita, Saikôsai Kaisô-Roku (Memoirs of a Supreme Court Justice); Tokuji Izumi, Yasuyuki Watanabe, Hajime Yamamoto and Towa Ni’imura, Ippo Mae-e Deru Shihô: Izumi Tokuji Moto-Saikôsai-Hanji ni Kiku (The Judiciary, One Step Forward: Conversations with Former Justice Tokuji Izumi

Book reviews

Po Jen Yap, Courts and Democracies in Asia (Richard H. Pildes)

Scott Newton. The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis (Mavluda Sattorova)

Mark Tushnet and Madhav Khosla, Unstable Constitutionalism – Law and Politics in South Asia (Po Jen Yap and Chintan Chandrachud)

Chaihark Hahm & Sung Ho Kim. Making We the People: Democratic Constitutional Founding in Postwar Japan and South Korea (Cheryl Saunders)

Jaclyn L. Neo (ed.). Constitutional Interpretation in Singapore: Theory and Practice (Mark Tushnet)

Jiunn-rong Yeh, The Constitution of Taiwan: A Contextual Analysis (Chien-Chih Lin)

Melissa Crouch, Law and Religion in Indonesia: Conflict and the courts in West Java (Dian A. H. Shah)

Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (Aparna Chandra)

Piyabutr Saengkanokkul, รัฐธรรมนูญ ประวัติศาสตร์ข้อความคิด อำนาจสถาปนา และการเปลี่ยนผ่าน (Rattathammanoon-Prawatsart-Korkwamkid-amnaj-sathapana-lae-karn-plian-parnn) (Constitution: history, constituent power, and transition) (Khemthong Tonsakulrungruang)

Benjamin Schonthal, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka (Jaclyn L. Neo)

Shitong QiaoChinese Small Property: The Co-Evolution of Law and Social Norms (Weitseng Chen)

Tong Zhiwei, The Reform and Renewal of China’s Constitutional System (Zhongguo xianzhi zhi weixin中国宪制之维新) (Albert H.Y. Chen)

Eva Pils, Human Rights in China: A Social Practice in the Shadow of Authoritarianism (Kelley Loper)

 

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Published on June 12, 2018
Author:          Filed under: Editorials
 

What’s New in Public Law

Davide Bacis, PhD Student in Constitutional Law, University of Pavia (Italy)

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

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

Developments in Constitutional Courts

  1. The European Court of Justice held that the term spouse, within the context of the free movement directive, includes spouses of the same sex.
  2. The US Supreme Court ruled, with a 7 to 2 decision, in favor of a Colorado baker who refused to bake a cake for a same sex wedding due to religious reasons.
  3. The Constitutional Court of Moldova declared that the Law on the use of languages spoken on the territory of the Moldovan Soviet Socialist Republic has fallen into desuetude.
  4. The Constitutional Court of Moldova rejected the constitutional complaint filed by the President of the Republic of Moldova against the bans on broadcasting and distributing mass information from countries other than those of the EU, Canada and the US.
  5. The Federal Constitutional Court of Germany held that the mandatory publication of official information on food and feed law violation is constitutional.
  6. The UK Supreme Court found that Northern Ireland abortion law is in violation of the European Convention on Human Rights.
  7. The Supreme Court of Bermuda held that the Domestic Partnership Act, banning same-sex couples marriages, is unconstitutional.
  8. The Supreme Court of Canada rejected a Yukon man’s request to hear its case regarding an alleged fair trial violation.
  9. The European Court of Human rights ruled that Azerbaijan violated article 5 of the Convention for the arrest of four civil society activists.
  10. The Inter-American Court of Human Rights found that Colombia is to be held responsible for the murder of journalist Nelson Carvajal.

In the News

  1. The Ethiopian Parliament approved the government’s decision to end the six-month state of emergency.
  2. The President of Madagascar appointed Christian Ntsay as the new Prime Minister.
  3. A new government was sworn in by King Felipe VI, after the Spanish Parliament had voted a motion of no-confidence against Mariano Rajoy.
  4. The Italian government, led by Prime Minister Giuseppe Conte, won the confidence vote in both Houses of Parliament.
  5. The Parliament of Canada passed a motion aimed at the upholding of net neutrality protections.
  6. Ukraine Parliament voted for the creation of an Anti-Corruption Court, in accordance with the Venice Commission’s recommendations.
  7. The President of Egypt appointed the housing minister as the new Prime Minister.
  8. The Parliament of New South Wales passed legislation making it illegal to approach and intimidate staff and patients in the proximity of abortion clinics.
  9. The French Parliament is debating a draft legislation that aims at limiting the spread of fake news during the elections.
  10. The Iraqi Parliament approved the manual ballot recount.

New Scholarship

  1. Geoffrey Corn, Ken Watkin and Jamie Williamson (2018), The Law in War (providing a comprehensive, yet concise, guide to the norms regulating international and non-international armed conflicts)
  2. Neil Boister (2018), An Introduction to Transnational Criminal Law (dealing with the complex subject of transnational law, including cyber-crimes, environment protection and trafficking of cultural property)
  3. Jessie Hohmann and Marc Weller (eds.) (2018), The UN Declaration on the Rights of Indigenous Peoples (the first commentary to the UN Declaration adopted in 2007, providing a thorough analysis of all provisions and their background)
  4. Frank Haldemann and Thomas Unger (eds.) (2018), The United Nations Principles to Combat Impunity: A Commentary (offering a detailed analysis, principle by principle, of the UN set of principles to combat impunity, examining their genesis and their practical application)
  5. Kevin M. Barry and Jennifer Levi (2018), Blatt v. Cabela’s Retail, Inc. and a New Path for Transgender Rights (discussing the reasons why transgender litigants never invoked the protections of the American with Disabilities Act, setting the path for new ways to challenge discrimination)
  6. Bret Boyce (2018), Obscenity and Nationalism: Constitutional Freedom of Sexual Expression in Comparative Perspective (observing the developments in constitutional jurisprudence on sexual morality in Canada, the US, India and Japan)
  7. David J. Bodenhamer (2018), The U.S. Constitution: A Very Short Introduction (providing a brief analysis of the US Constitution through a thematic approach)
  8. A. J. Coady, Ned Dobos and Sagar Sanyal (eds.) (2018), Challenges for Humanitarian Intervention (offering a multidisciplinary perspective on the practice of armed humanitarian intervention)

Call for Papers and Announcements

  1. The AAU Law Forum welcomes contributions for its next issue, regarding the Visegrád Group and government regulations encouraging startups and entrepreneurs. The deadline for submission is October 1, 2018.
  2. The German Yearbook of International Law welcomes papers for the next issue. Papers should be 10,000-12,500 words long (including footnotes). The deadline is September 1, 2018.
  3. LUISS Guido Carli University (Rome), together with the University College London, will host a seminar on “The Challenges of Reforming Upper Houses in the UK and Italy” on Monday, June 11. Registration is required by June 10, 2018.
  4. LUISS Guido Carli University (Rome), together with the University College London, will host a seminar on “Bicameralismo e processo legislativo nel Regno Unito e in Italia” on Tuesday, June 12. Registration is required by June 10, 2018.
  5. The University of Glasgow welcomes the submission of papers for the upcoming event “International law under pressure: navigating a shifting landscape”. Abstracts of no more than 300 words must be submitted by June 30, 2018.
  6. The Lauterpacht Centre for International Law at the University of Cambridge welcomes the submission of papers for the conference “On the Origins of International Legal Thought”. Abstracts of between 200 and 500 words should be submitted by July 31, 2018.
  7. The University of Padova calls for the submission of papers for the upcoming event “International Lawyers and Human Dignity”. Abstracts of no more than 600 words must be submitted by June 30, 2018.
  8. The University of Siena welcomes applications for its Summer School on Terrorism and Human Rights, June 20-31, 2018. The deadline for applications is June 15, 2018.
  9. The European Constitutional Law Review welcomes submissions for the 2018 EuConst Colloquium to be held in Amsterdam on October 5, 2018. Papers or abstracts must be submitted within July 1, 2018.

Elsewhere Online

  1. Bianca Gutan, The Taming of the Court – When Politics Overcome Law in the Romanian Constitutional Court, Verfassungsblog
  2. A. Dori, Hic Rhodus, hic salta: The ECJ Hearing of the Landmark “Celmer” Case, Verfassungsblog
  3. G. Romeo, It Was a Dark and Stormy Night: The Italian Institutional Crisis and Europe, UK Constitutional Law Association Blog
  4. David R. Cameron, New governments in Italy & Spain, but for how long?, Yale Macmillan Center
  5. M. Wilkinson, A Crisis Made in Italy, Verfassungsblog
  6. D. Rodriguez, Symposium: The Masterpiece ruling calls for increased vigilance of discrimination in the marketplace, ScotusBlog
  7. S. Peers, Love wins in the CJEU: Same Sex Marriages and EU free movement law, EU Law Analysis
  8. G. Piccirilli, Is the institutional crisis in Italy over? Surely a storm, maybe indicating a climate change, Blog of the IACL, AIDC
  9. D. Samararatne, Public Consultation in Constitution Making – The Sri Lankan Experiment, Blog of the IACL, AIDC
  10. N. Mekki, Local elections in Tunisia: Implementing the constitution and reinforcing transition, ConstitutionNet
  11. A. Duff, New Paradigms for the European Parliament, Verfasungsblog
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Published on June 11, 2018
Author:          Filed under: Analysis
 

What’s New in Public Law

Chiara Graziani, PhD Student in Comparative Constitutional Law, University of Genoa (Italy)

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

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

Developments in Constitutional Courts

  1. The European Court of Justice held that the notion of ‘right of access’ includes grandparents’ right to see their grandchildren.
  2. The European Court of Human Rights condemned Romania and Lithuania for complicity in the CIA extraordinary rendition program.
  3. The US Supreme Court rejected a challenge to Arkansas abortion law.
  4. The European Court of Human Rights condemned Turkey for breach of art. 8 ECHR by preventing parents from burying their children in the town of their choice.
  5. The Israeli High Court of Justice upheld an amendment to the Basic Law on the Knesset allowing 90 members of the legislative to expel one of their colleagues if they believe that he/she incites or support racism, armed struggle against the state, or terrorism.
  6. The European Court of Justice held that Belgian law prohibiting ritual slaughter of animals by Muslims–unless they are carried out in approved slaughterhouses–does not infringe freedom of religion.
  7. The US Supreme Court ruled that police searches over a motorcycle parked outside of a private property infringe the Fourth Amendment.
  8. The Supreme Court of Canada refused a man’s request to take back his guilty plea because he did not demonstrate how he would have behaved differently, had he known he could be deported.
  9. The European Court of Justice ruled that the EU Directive on unfair terms in consumer contracts may apply to educational establishments and that this has to be assessed by national courts of their own motion.
  10. The French Conseil Constitutionnel held that the offence of the French Criminal Code punishing public apology of terrorist acts is not unconstitutional.

In the News

  1. The designated President of the Council of Ministers in Italy, Giuseppe Conte, presented his list of ministers to the President of the Republic (for the second time) and the new government was sworn in on Friday, 1 June.
  2. Lord Reed was appointed Deputy President of the UK Supreme Court.
  3. The Republic of Ireland voted in a popular referendum in favor of overturning the abortion ban.
  4. The EU General Data Protection regulation has been applicable since 25 May.
  5. A second round of elections will be held in Colombia on 17 June.
  6. Georgia accused Russia of war crimes in closing evidence before the European Court of Human Rights.
  7. An Israel national airline sued Israel alleging aerial discrimination.
  8. The Hungarian Government submitted a bill to the Parliament imposing criminal sanctions to groups supporting or financing illegal immigration.
  9. Lybia agreed to elections in December under the auspices of the UN, in order to end the situation of conflict in the country.
  10. A special criminal court will start investigating on alleged war crimes and crimes against humanity committed in the Central African Republic.

New Scholarship

  1. Martin Belov (2018), Global Constitutionalism and its Challenges to Westphalian Constitutional Law (discussing how, since the end of the 20th century, global constitutionalism has challenged and transformed the Westphalian constitutional tradition)
  2. David Bilchitz & David Landau (eds.), The Evolution of the Separation of Powers. Between the Global North and the Global South (2018) (discussing how the doctrine of the separation of powers has changed due to shifts in constitutional practice)
  3. Donal K. Coffey (2018), Constitutionalism in Ireland, 1932-1938. National, Commonwealth, and International Perspectives (considering a series of key issues in Irish constitutionalism in 1930s, a turbulent decade for the United Kingdom, the Commonwealth and Europe)
  4. Katarzyna Granat (2018), The Principle of Subsidiarity and its Enforcement in the EU Legal Order (analyzing and evaluating the EU mechanism of subsidiarity represented by the Early Warning System and the role that national parliaments have played within it)
  5. Elspeth Guild, Didier Bigo & Mark Gibney (eds.), Extraordinary Renditions. Addressing the Challenges of Accountability (2018) (examining the US-led program of extraordinary renditions and the investigations carried out by authorities in quest for accountability and re-establishment of the rule of law)
  6. Tomasz Tadeusz Koncewicz (2018), On the Strategic Reading of the Constitutional Document. Mapping out Frontiers of New Constitutional Research (analyzing the erosion of rule of law principles in different contexts and examining the role of institutions to protect democracies)
  7. Darrel R. Ross (2018), Civil Liability in Criminal Justice (providing information and recommendation on how criminal justice practitioners in the US should behave in order to perform their duties within the limits of justice)
  8. Tom Ruys, Olivier Corten & Alexandra Hofer (eds.), The Use of Force in International Law (describing cases in which states resorted to the use of force and discussing methodological approaches to the matter)
  9. Paul F. Scott (2018), The National Security Constitution (analyzing how different approaches to the protection of national security have affected the constitutional order of the United Kingdom)
  10. Alan Wehbé (2018), The Free Press and National Security: Renewing the Case for a Federal Shield Law (arguing in favor of a federal reporter’s shield law in matters of national security)

Call for Papers and Announcements

  1. The Administrative and Regulatory Law News accepts submissions for the summer issue. The deadline to submit pieces is June 8, 2018.
  2. The Faculty of Law of the University of Graz welcomes proposals of papers for the Citizenship Conference 2018, to be held in Graz on November 20-21, 2018. The deadline to send abstracts is July 1, 2018.
  3. The Department of national and supranational public law of the University of Milan is hiring a one-year Post-Doc Fellow for the project ‘The principle of economic conditionality in comparative perspective’. The deadline for application is July 11, 2018, with interview on July 17, 2018 and start on August 1, 2018. For information, contact Antonia Baraggia: antonia.baraggia@unimi.it.
  4. The Verfassung und Recht in Übersees/Law and Politics in Africa, Asia and Latin America welcomes submissions for the special issue ‘Between Centralized Federalism and Regionalized Centralism: Varieties of Territorial Organizaton in Latin America’. The deadline for sending abstracts and CVs is August 1, 2018.
  5. Maastricht University accepts nominations for the Theo van Boven – Maastricht Human Rights Research Prize 2018. Nominations must be received by September 15, 2018.
  6. The T.M.C. Asser Instituut (The Hague) invites submissions for the 2018 Yearbook of International Humanitarian Law. The deadline for submissions of articles is October 1, 2018.
  7. Oxford University Press welcomes book proposals for its new Series in Comparative Constitutionalism.

Elsewhere Online

  1. Nicola McEwen, Crisis, headache, or sideshow: how should the UK government respond to the Scottish parliament’s decision to withhold consent for the Withdrawal Bill?, The Constitution Unit
  2. Coree Brown-Swan, A New Vision of Independence?, Blog of the Centre of Constitutional Change
  3. Lorna Woods, Revision of Audiovisual Media Services Directive – Video-sharing Platforms, EU Law Analysis
  4. Erika Rackley & Rosemary Hunter, Judicial Leadership, Lady Hale and the UK Supreme Court, UK Constitutional Law Association Blog
  5. Jaclyn L. Neo, Malaysia’s Democratic Hope: Proposals for Constitutional Reform, Constitutionnet
  6. Amy Howe, Justices Stay Out of Arkansas Abortion Case, Scotusblog
  7. Orla Lynskey, Why has the new GDPR legislation been introduced?, LSE Thinks
  8. Iddo Porat, The Problem with Iceland’s proposed ban on circumcision, Blog of the IACL, AIDC
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Published on June 4, 2018
Author:          Filed under: Developments
 

Conference Report–“Constitutional Asymmetry in Multi-tiered Multinational Systems”–University of Antwerp

Maja Sahadžić, University of Antwerp

On April 23-24, 2018, the Faculty of Law of the University of Antwerp, supported by the Fundamental Research Foundation Flanders (Fonds Wetenschappelijk Onderzoek–FWO), hosted the expert seminar “Constitutional asymmetry in multi-tiered multinational systems”. The expert seminar was co-convened by Patricia Popelier (University of Antwerp) and Maja Sahadžić (University of Antwerp) with the purpose of exploring and discussing association between constitutional asymmetry, multi-tiered systems, and multinationalism. The objectives of the seminar were three folded: detecting constitutional asymmetry within the chosen systems; explaining the historical background behind constitutional asymmetries and the logic behind constitutional asymmetries; and linking constitutional asymmetry to multinationalism.

The expert seminar is conceived as a comparative study on constitutional asymmetry in multi-tiered multinational systems. To that end, and following a pre-defined methodology, 16 jurisdictions have been identified as multi-tiered multinational systems to be discussed in the light of the constitutional asymmetry, including Belgium, Bosnia and Herzegovina, Canada, China, Ethiopia, the European Union, India, Indonesia, Iraq, Italy, Malaysia, Myanmar, Pakistan, Russia, Spain, and the United Kingdom. Accordingly, experts have been invited to present a country study for each jurisdiction.

In order to facilitate comparability among the jurisdictions, the experts were provided with the instructions of how to structure their presentations. Five parts have been identified as important: first, the explanation of the historical background of the system, in terms of territorial, national, economic, and social developments; second, detecting political asymmetries within jurisdictions; third, the elucidation about the logic behind constitutional asymmetries and legal basis for introducing them; fourth, the explication of where within the system constitutional asymmetries emerge and in which parts of the system are they mostly pronounced; and fifth, the identification and explanation of the link between constitutional asymmetry and multinationalism in the country of interest.

The expert seminar featured 16 paper presentations grouped into five sessions. This report provides a brief summary of the country reports, which will be published in an edited book.

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Published on June 1, 2018
Author:          Filed under: Developments
 

Save the Date–I-CONnect Happy Hour at ICON-S 2018 in Hong Kong–Monday, June 25, 7pm to 9pm at Missy Ho’s in Kennedy Town

Richard Albert (Texas), Tom Ginsburg (Chicago), and David Landau (Florida State) invite friends of I-CONnect to our happy hour at the ICON-S 2018 Conference in Hong Kong.

All are welcome on Monday, June 25, from 7:00pm to 9:00pm at Missy Ho’s, located at Shop G9, G/F, Sincere Western House, 48 Forbes Street in Kennedy Town, one subway (MTR) stop away from Hong Kong University.

Attendees will benefit from the following beverage and food specials, thanks to the help of our colleague Rehan Abeyratne (CUHK). All prices below are in local Hong Kong currency (1 USD = 7.84600 HKD).

Beverages
$40 HKD bottled beer
$50 HKD draft beer and house wine
$50 HKD specialty cocktail (prepared by bartender)

Food
Edamame
Chicken karaage
Leek and pork gyoza dumplings
California roll

Food will be self-serve at the price of $120 HKD per person. Please bring cash if you wish to partake in these beverages and/or food.

The I-CONnect editors look forward to seeing you there!

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Published on May 30, 2018
Author:          Filed under: Developments
 

A Change in the Climate: Partly Cloudy with Increasing Litigation (I-CONnect Column)

James Fowkes, University of Münster Faculty of Law

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

What will courts do about climate change? When it comes to discrete effects, judges have effectively been dealing with the issue for years in environmental law and other cases. But it is only since 2015 that judges around the world have begun to engage with the response to climate change itself, and the next months should be full of updates on their efforts.

As I write, judges in the Hague are hearing the Dutch government’s appeal against the 2015 judgment in Urgenda Foundation. That judgment, the first of its kind in the world, held that the government had to cut greenhouse gas emissions by 25% relative to 1990 levels by 2020, overruling the government’s decision to seek only a more modest reduction.[1]

Apart from the obvious question of whether the order itself will stand, the Urgenda appeal should be a key datum on two important broader issues.

The first arises because the world’s key emitters are mainly not the site of its boldest courts. The Dutch appeal will be an indicator of how far senior judges in more restrained systems will heed standard separation of powers doctrines in the face of arguments that climate change is special – especially in a context where the Dutch government seems to be taking steps towards the stricter target even as the appeal is proceeding. This should bring to mind Thompson, the similar 2017 New Zealand case.[2] High Court judges there held that the government had acted unlawfully in not reviewing climate change targets, but did not make an order because a new government, with stricter targets, had since come in to power.

Second, we will learn more about whether courts can play an action-forcing role in the context of international emissions politics. This role is standard fare in domestic constitutional theory, but it finds an interesting application in the context of the international climate change stalemate. States are holding back on their own reductions as bargaining chips to persuade others to join them, or simply because they are waiting to see what other states do. The refusal of the original Urgenda judgment to accept that the Dutch government could scale back its own emissions reduction efforts for international political reasons of this sort is perhaps its most intrusive feature. The fate of this argument on appeal will be particularly worth watching.

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Published on May 30, 2018
Author:          Filed under: Analysis
 

Announcement–New Oxford Series in Comparative Constitutionalism–Book Proposals Welcome

Richard Albert, The University of Texas at Austin

Oxford University Press has created an exciting Series in Comparative Constitutionalism, a new home for scholarly books in public law focused on the study of constitutionalism. The new Series is co-edited by Robert Schütze and me.

Robert and I are delighted to announce that we have contracted our first three books in the Series, one each to be authored separately by Ran Hirschl (Toronto), Bui Ngoc Son (NUS), and Wojciech Sadurski (Sydney).

The new Series welcomes complete proposals as well as preliminary inquiries. A proposal should include a working title, a narrative exposition of the ideas to be developed, a detailed table of contents, a chapter-by-chapter description of the ground you will cover, and a discussion of the competing and related scholarship. A proposal should also include an anticipated manuscript delivery date, an estimated word count, and an indication of the percentage of the book that will have been published elsewhere, for instance in a legal periodical. Ultimately, a proposal should situate your claim(s) within the existing literature and explain the scholarly contribution you will make in your book. A curriculum vitae and two draft chapters from your proposed book will also assist in the consideration of your proposal. For any formal or informal inquiries please contact the Series editors by email at richard.albert [at] law.utexas.edu and robert.schuetze [at] durham.ac.uk or OUP commissioning editor Jamie Berezin at jamie.berezin [at] oup.com.

The mission of this new Series is to publish public law scholarship of the highest caliber by scholars of all academic ranks. The series is, above all, comparative in nature: we aim to publish outstanding monographs (and on exceptional occasions edited collections) that enrich our comparative understanding of constitutional doctrine, norms, practices, or systems. The series’ comparative focus on the study of constitutionalism does not foreclose single-jurisdiction studies. The series, importantly, takes a broad view of what is constitutional: instead of the classic focus on the nation state, we consciously wish to integrate local, national, regional, and global phenomena into its scope. We aspire to feature the very best doctrinal, historical, sociological, and theoretical inquiries within this domain of comparative constitutionalism.

The new Series is supported by an Advisory Board of six scholars representing the richness and diversity of our field: Denis Baranger (Paris II), Wen-Chen Chang (NTU), Roberto Gargarella (Torcuato di Tella), Vicki Jackson (Harvard), Christoph Möllers (Humboldt) and Cheryl Saunders (Melbourne).

We look forward to receiving your book proposals.

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Published on May 29, 2018
Author:          Filed under: Developments
 

What’s New in Public Law

–Mauricio Guim, S.J.D. Candidate University of Virginia School of Law.

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

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

Developments in Constitutional Courts

  1. The Supreme Court of Canada imposed a 50-year embargo on public access to files related to the deliberation of the judges. The 50-year restriction starts from the day the Court issues the ruling, and applies correspondence between the judges, marks up of draft rulings, and communication through law clerks.
  2. The Supreme Court of India upheld the Reserve Bank of India’s circular ending all dealings with cryptocurrencies.
  3. In a 5-4 decision the United States Supreme Court validated the use of class and collective action waivers in arbitration agreements.
  4. The Supreme Court of India approved the Cauvery Management Scheme for smooth distribution of water among the southern riparian states.
  5. The United States Supreme Court affirmed expectation of privacy in rental cars.
  6. The Supreme Court of India has asked Prime Minister Narendra Modi’s party to prove that it can muster enough lawmakers to govern the southern state of Karnataka after an indecisive vote earlier this week.
  7. The United States Supreme Court ruled unconstitutional federal prohibitions on sports betting, opening the door college sports betting.
  8. The Constitutional Court of Moldova declared unconstitutional certain provisions on transportation expenses of goods included in custom value.
  9. Following an advisory opinion of the Inter-American Court on Human Rights, the Supreme Electoral Court of Costa Rica ruled that citizens may change the name that appears in their identity card to match their gender identity.

In the News

  1. Nicolás Maduro won the presidential elections in Venezuela amid widespread disillusionment and accusations of fraud.
  2. Just two days before the presidential election, the Trump administration imposed new sanctions against Diosdado Cabello, considered the second most powerful man in Venezuela
  3. Former president of Brazil Dilma Rousseff, in a recent interview for BBC, suggested that convicted former President Luiz Inacio Lula da Silva will be a “necessary presence in the reconstruction of Brazil” and “can help stabilize the country’s democratic institutions.”
  4. Three human rights and opposition activist challenge to President of Zimbabwe Emmerson Mnamgagwa was withdrawn from the Constitutional Court’s docket. The plaintiff claim that the signatures are forged the move is a fraud.
  5. Six lawyers in Iran filed a petition challenging ban on popular telegram app.
  6. The Trump Administration has proposed to Mexico a “safe third country” agreement that would allow the United States to reject asylum applicants and instead force them to seek protection in Mexico.
  7. Burundians approved in referendum a constitutional amendment to extend presidential term limits from five to seven years.
  8. After more than two months of political deadlock, Italy’s populist parties announced that they had agreed on a common platform and would form a government based on a budget-breaking and anti-immigration agenda.
  9. At least 21 Palestinians and Israeli peace activists were arrested in Haifa during peaceful protests against Israeli occupation in Gaza.
  10. German Afd party sues Merkel amid open-door policy towards migrants.
  11. India opposition party went to the Supreme Court for the third time in three days in a bid to thwart Prime Minister Narendra Modi’s nationalist party taking control of key southern states.
  12. The United States Supreme Court was asked by the U.S. Solicitor General to review Yakama Tribe’s gas tax exemption.
  13. Jurors will return to a Silicon Valley courtroom to put a price on patented iPhone design features copied by Samsung in a legal case dating back seven years.
  14. Changes at the Democratic Republic’s of Congo Constitutional Court could clear the way for President Joseph Kabila to run for a third term.
  15. The Consultative Committee charged with drafting a new Constitution for the Philippines has proposed the creation of three supreme courts and specialized courts.
  16. A federal judge in Manhattan ruled that the President of the United State’s habit of blocking critics on Twitter is unconstitutional. According to the judge, the president’s Twitter feed is a public forum protected by the First Amendment against view-point based discrimination.
  17. A new law in Sweden now considers sex without explicit consent –verbal or physical– as rape.
  18. The Minister of Health of Chile issued a regulation allowing medical professional to refuse to perform abortion is doing so violates the religious and moral beliefs.
  19. Saudi Arabia detains activists who pushed to end ban on women driving.

New Scholarship

  1. Jeffrey Sutton, 51 Imperfect Solutions (studying the interaction of federal and state constitutions, as well as federal and state courts, in school funding, the exclusionary rule, eugenics and mandatory flag salute).
  2. Giuseppe Martinico, Richard Albert, Antonia Baraggia & Cristina Fasone (eds), The Constitution of Canada: History, Evolution, Influence and Reform, Special issue Perspectives on Federalism, Vol. 9 issue 3/2017 (special issue to commemorate the 150th anniversary of Confederation in Canada)
  3. Charles Barzun, Three Forms of Legal Pragmatism (presenting three forms of legal pragmatism, and suggesting that the unifying theme that unites them is the philosophical problem of justifying moral and legal values within a naturalistic, non-theological worldview).
  4. Norman Ho, Natural Law in Chinese Legal Thought: The Philosophical System of Wang Yang Ming (presenting Wang Yang Ming as a natural law theorist and suggesting that his philosophical contributions can contribute field of comparative legal theory).
  5. Guarav Mukherjee, The Supreme Court and Executive Law-Making: The Afterlife of failed Ordinances in Krishna Kumar Singh II (analyzing the legality and repercussions of re-promulgated ordinances by the Governor of Bihar).
  6. Son Ngog Bui, Anticolonial Constitutionalism: The Case of Ho Chi Minh (arguing that modern constitutionalism offers a powerful ideational and discursive weapon for colonized people to struggle against colonialism).
  7. Jennifer Reynolds, Book Review: Captured by Evil: The idea of Corruption in Law (reviewing Laura Underkuffler’s book on political and legal corruption).
  8. Murat Mungan, Optimal Preventive Law Enforcement and Stopping Standards (arguing that the optimal level of law enforcement must consider preventive benefits and inconvenience costs and suggesting that suspicionless stoppings can be optimal in a verity of circumstances such as poor performance in forming suspicions; the population is unresponsive to deterrence measures, and the attempt rate is high).
  9. Adam Perry, Strained Interpretations (using Bayes’ theorem to define strained interpretation and propose two reasons in defense of them)
  10. Andrew Coan, Amending the Law of Constitutional Interpretation (suggesting, as a thought experiment, a constitutional amendment originally mandating a nonoriginalist approach to constitutional interpretation).
  11. Brenner Fissel, Federalism and Constitutional Criminal Law (analyzing federalism as a justification for the Supreme Court’s refusal to place limits over the substance of criminal law).
  12. Mark Kende & Jenna Bishop, Two Decades of Obscenity and Free Speech Issues in Hong Kong, with a U.S. Comparative Perspective (analyzing freedom of speech issues in Hong Kong on the twentieth anniversary of its transfer from British to Chinese sorvereignty).
  13. Louis A. Weithorn, A Constitutional Jurisprudence of Children’s Vulnerability (analyzing the judicial construct of children’s vulnerability and proposing a typology of vulnerability based on harm-based vulnerability, influence-based vulnerability, capacity-based vulnerability, and dependency-based vulnerability. The article suggests a tenuous link between scientific knowledge and the courts’ characterization of children’s vulnerability).
  14. Josh Chafetz & David Pozen, How Constitutional Norms Breakdown (suggesting that constitutional norms are in perpetual flux and that it is more worrisome when norms are subtly revised than when they are openly flouted).
  15. Joseph Benjamin Landau, New-Majoritarian Constitutionalism (proposing a new category in addition to “majoritarianism” and “counter-majoritarianism” and arguing that “new majoritarian constitutionalism considers 1) the actual decisions of courts and juries; (2) legislative trends; (3) executive branch practices; and (4) geographic disparities within various jurisdictions.)
  16. Ronald Allen & Michael Pardo, Relative Plausibility and its Critics (arguing that relative plausibility prevails over other theories of proof).
  17. Erin Collins, Punishing Risk, (discussing usage of predictive analytics in sentencing and suggesting that actuarial risk assessment was not intended for use for sentencing decisions).
  18. Giacomo Delledonne, Giuseppe Martinico & Leonardo Pierdominici (eds), Il costituzionalismo canadese a 150 anni dalla confederazione. Riflessioni comparatistiche, Pisa University Press, Pisa, 2018 (reflecting on the Canadian Constitution in comparative perspective on the occasion of the 150th anniversary of Confederation)

Call for Papers and Announcements  

  1. The University of Alabama invites submissions for the Midwestern Law and Economics Association Annual Meeting. The papers can be on any topic of public law informed by economic thought. The submission deadline is June 25, 2018. Persons interested in applying should email Shahar Dillbary at sdillbary@law.ua.edu.
  2. “The Law” feature at Presidential Studies Quarterly is seeking submissions on topics related to executive and/or presidential interpretations of the Constitution, congressional acts, federal court cases, and international agreements.
  3. Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis announce the Second Annual Equality Law Scholars’ Forum to be held in November 2018. Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 1, 2018 to Tristin Green, USF School of Law at tgreen4@usfca.edu.
  4. Northern Illinois University College of Law will host a Junior Scholars Works-in-Progress conference at Loyola University School of Law on October 5, 2018. Interested scholars are expected to submit a working title and abstract of 200-300 words to LeAnn Baie (lbaie@niu.edu) no later than June 15, 2018.
  5. The seventh edition of the Summer Program-Jean Monnet Module on “Parliamentary democracy in Europe” is receiving application. The application deadline is on June 10th. Prospective applicants should contact Illaria Del Vecchio at summersog@luiss.it.
  6. Alan Greene is launching his book “Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crises.” The event will take place on May 30 at 1 P.M. at the Bonavero Institute for Human Rights at Oxford University. More information about the book and the event can be found.
  7. The University of Texas Department of Government is organizing the Fifth Annual Graduate Conference in Public Law. The Conference will take place on October 25-26 in Austin Texas. The application deadline is August 15th. Scholars interested in participating should e-mail the organizers at utpubliclawconference@gmail.com.
  8. Verfassungs and Recht Übersee is seeking subsmissions for its special edition “Between Centralized Federalism and Regionalized Centralism: Varieties of Territorial Organization in Latin America.” The application deadline is August 1st Scholars interested in applying should contact Andreas Gutmann at andreas.gutmann@oefre.unibe.ch.
  9. The University of Bologna, University of Strasbourg, and King’s College London are organizing the Summer School for the Protection of Human Rights in Europe. The program will take place in Bertinoro on June 24 to 29. Interested persons should contact Giovanni Zaccaroni at zaccaroni@unibo.it.

Elsewhere Online

  1. Diego Bastidas Chasing, Lenin’s Moreno Referendum, The Chronicle of a Political Crisis Foretold, We The People.
  2. David Fontana, Washington is a cool city. That’s terrible news for democracy, Washington Post.
  3. Cristina Regina Bonoan & Bjorn Dressel, Dismantling a liberal constitution, one institution at a time, New Mandala.
  4. Emmet Macfarlane, The Supreme Court is being unjustifiably secretive about its internal deliberations, CBC.
  5. James W. Snyder, The United States Supreme Court Paves the Way for some Great Big Ten Prop Bets, Off Tackle Empire.
  6. Nora Shelly, Land Reform Debate Needs to Shift, Sunday Times.
  7. Philip Slayton, The Supreme Court’s failure to Connect, The Globe and the Mail.
  8. Christian Davies, Hostile Takeover, How Law and Justice Captured Poland’s Courts, Freedom House.
  9. Aziz Rana, Democracy and the Left: Rana Responds to New York Magazine’s Jonathan Chait, Dorf On Law.
  10. Joseph Fishkin, The Rule of Law, Balkanization.
  11. Angie Chan, Understanding Malaysia’s Political Earthquake, New York Times.
  12. Chris Buckey, Chinese’s Legal Maverick, Facing Political Gales, Bides His Time, New York Times.
  13. Katrinn Bennhold, Germany Acts to Tame Facebook, Learning from its Own History of Hate.
  14. Bernard Avishai, The Fight to Define the Very Essence of Israel, The Guardian.
  15. Goodman, The Opiod Crises Compels New York to look to Canada for Answers, New York Times.
  16. Adeel Hussain, Save the Constitution!,
  17. Sanford Levinson, The Supreme Court as a running dog of the capitalist empire: Reflections on the Arbitration cases, Balkanization.
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Published on May 28, 2018
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Conference Report—Inaugural Conference of the Central and Eastern European Regional Chapter of the International Society of Public Law (ICON-S CEE)—”The Power of Public Law in the 21st Century”

Emese Pásztor, Assistant Professor of Law, ELTE, with contributions from PhD students Bazánth Barbara, Renáta Bedő, Ádám Lukonits, and János Mécs

The Central and Eastern European Regional Chapter of the International Society of Public Law (ICON-S CEE) was established on 19 April 2018 in Budapest, Hungary. Following the establishment period, the chapter will be open for scholars of any nationality based at universities in Central and Eastern Europe and scholars of nationality of one of the Central and Eastern European countries, as well as other scholars interested in CEE who would like to join as members. (If you are interested in the work of the chapter, please contact us at iconceechapter@gmail.com).

The establishment of the ICON-S CEE chapter was announced at the inaugural conference on 20 April 2018. The conference, convened by Eszter Bodnár (ELTE), David Kosař (Masaryk University), Zoltán Pozsár-Szentmiklósy (ELTE) and Pál Sonnevend (ELTE), was hosted by the Eötvös Loránd University Faculty of Law (ELTE) in Budapest.

The conference, entitled ‘The Power of Public Law in the 21st century’ provided an exceptional opportunity for the participants to dedicate an entire day solely to the noble mission of evaluating current European trends in the field of public law, and to continue all the discussions that have started at earlier events convened by ICON-S.

Read the rest of this entry…

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Published on May 25, 2018
Author:          Filed under: Developments