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

Special Announcement: Symposium on Brazilian Abortion Ruling

Richard Albert, Boston College Law School

Late last year, in an historic ruling for the region, the First Chamber of the Supreme Court of Brazil held that a criminal prohibition on procuring an abortion before the end of the first trimester violates the fundamental rights of women as well as the principle of proportionality.

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

Later this month, I-CONnect will publish an online symposium on this controversial and important decision–controversial because the Court split 3 to 2 and the judgment has stirred much debate among lawmakers, and important because the judgment has broken new ground in the region. The symposium will feature perspectives from scholars around the world.

Below, we publish the syllabus of the case; the full translation will be published as part of the symposium.

WRIT OF HABEAS CORPUS 124.306 RIO DE JANEIRO STATE

MAJORITY OPINION

JUSTICE LUÍS ROBERTO BARROSO:

Syllabus: Criminal procedure. Writ of Habeas corpus. Pretrial detention. Absence of legal requirements for its decree. Unconstitutionality of the incidence of the penal offence of abortion in case of voluntary termination of pregnancy during the first trimester. Release from custody. Order granted “ex officio.

1. The writ of habeas corpus is not applicable to the case at bar. However, the situation demands that the order be granted “ex officio” on two grounds, for the purpose of releasing the defendants from pretrial detention.

2. First, the original pretrial detention does not meet the legal requirements for the measure, namely: risks to public or economic order, to the criminal investigation or to the enforcement of criminal law (article 312 of the Criminal Procedure Code). The defendants have no prior criminal record, have stable places of residence and work, and have obeyed all summons to appear before the court. Moreover, if convicted, the defendants will serve their sentences under day release conditions.

3. Secondly, it is necessary to construe Criminal Code articles 124 to 126 – which define the crime of abortion – in accordance with the Constitution, resulting in the exclusion from its scope of voluntary termination of pregnancy carried out in the first trimester. The criminalization, in this case, violates several fundamental rights of women, as well as the principle of proportionality.

4. The criminalization is incompatible with the following fundamental rights: the sexual and reproductive rights of women, who cannot be forced by the State to maintain an unwanted pregnancy; the autonomy of women, who retain the right to make their own existential choices; the physical and psychological integrity of the pregnant woman, who is the one that suffers the consequences of pregnancy in her own body and mind; and gender equality, given that men do not get pregnant, therefore, making it necessary to respect the woman’s will on this matter in order to achieve full gender equality.

5. Beyond these considerations, we must add the impact of criminalization on poor women. The treatment of abortion as a crime, provided for by Brazilian criminal law, prevents these women, who do not have access to doctors or private clinics, from turning to the public health system to obtain the appropriate procedures. As a consequence, cases of self-mutilation, serious injuries, and death multiply.

6. The criminalization also violates the principle of proportionality for reasons that are cumulative: (i) it is likely not adequate to protect the intended legal good (the life of the unborn), because it has no relevant impact on the number of abortions performed nationwide, and serves only to impede their safe practice; (ii) it is possible for the State to avoid the occurrence of abortions through more effective and less harmful measures than criminalization, such as sexual education, distribution of contraceptives, and support for the woman who wishes to carry the pregnancy to term but finds herself in adverse conditions; (iii) the measure is disproportionate in the narrow sense, as it produces social harms (problems with public health and deaths) that clearly outweigh its benefits.

7. Finally, virtually no developed and democratic country in the world considers the termination of pregnancy during the first trimester a crime, including the United States, Germany, the United Kingdom, Canada, France, Italy, Spain, Portugal, the Netherlands, and Australia.

8. Release from pretrial custody order granted ex officio, extending its scope to the other co-defendants.

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

What’s New in Public Law

–Vicente F. Benítez R., Constitutional Law Professor, Universidad de La Sabana (Colombia) and LL.M. student at NYU

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. Kenya’s High Court has recently ruled that the Attorney General is not a Cabinet Secretary and therefore cannot perform administrative roles reserved for the Minister under the Legal Education Act.
  2. The UK Supreme Court decided that the Primer Minister is requires Parliament’s approval before initiating the official process for leaving the EU.
  3. The Greek Supreme Court denied the extradition of eight servicemen to Turkey arguing that it is likely that they will not face fair trial conditions when returning to Turkey.  
  4. The Italian Constitutional Court partially upheld most of the new electoral law (known as Italicum), paving the way for new elections.
  5. The French Constitutional Council struck down a draft statute that criminalized the denial of the Armenian Genocide.  

In the News

  1. The Russian Constitutional Court held a public hearing concerning the constitutionality of Article 212.1 of the Russian Criminal Code which establishes criminal liability for multiple violations of the statutory rules for organization or holding of assemblies, meetings, demonstrations, processions or picketing.
  2. The President of the United States will announce his nominee for the U.S. Supreme Court this week. The U.S. Vice President says the nominee will be a ‘strict constructionist’.   
  3. Jakarta’s Constitutional Court Justice has been arrested under alleged bribery claims.
  4. The Kazakh President declares that he will give some powers to the Parliament in order to ‘democratize’ the system and to ‘redistribute’ power.
  5. The Bulgarian President calls for early national elections (to be held on March 26, 2017) and appoints a temporary Primer Minister.   
  6. Syrian rebels disagree with the draft Constitution proposed by Russia.      

New Scholarship

  1. Rosalind Dixon & Samuel Issacharoff, Living to fight another day: Judicial Deferral in Defense of Democracy, Wisconsin Law Review (2016) (offering an account of how courts around the globe strategically use ‘second order deferrals’ to postpone the application of new and controversial doctrines so that they can be used in the future in a more favorable political setting)
  2. John Ferejohn & Frances McCall Rosenbluth, Forged Through Fire. War, Peace, and the Democratic Bargain, Liveright (2016) (exploring from an historical and political vantage point how, paradoxically, war has promoted democracy by means of the universalization of voting rights and the redistribution of property)
  3. Asher Flynn & Jacqueline Hodgson, Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need, Hart Publishing (2017) (examining, from empirical and theoretical grounds, the responses given to legal aid crises in domestic and comparative contexts)   
  4. Pedro Fortes, Larissa Boratti, Andrés Palacios Lleras & Tom Gerald Daly (eds.), Law and Policy in Latin America: Transforming Courts, Institutions, and Rights, Palgrave MacMillan (2017) (presenting a comprehensive introduction to law and policy responses to contemporary problems in Latin America, such as human rights violations, regulatory dilemmas, economic inequality, and access to knowledge and medicine)
  5. H. P. Lee, Constitutional Conflicts in Contemporary Malaysia, Oxford University Press (2017) (assessing the impact of the multiple conflicts among the branches on the principle of separation of powers in the Malaysian regime)
  6. Scott Newton, The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis. Hart Publishing (2017) (exploring constitutional regimes of the Kyrgyz Republic, as well as the Republics of Kazakhstan, Turkmenistan, Uzbekistan and Tajikistan, from a political historical, economic and social perspectives)  
  7. Ernst-Ulrich Petersmann, Multilevel Constitutionalism for Multilevel Governance of Public Goods: Methodology Problems in International Law. Hart Publishing (2017) (arguing for a ‘new philosophy of international law’ to protect human rights and public goods, and suggesting five propositions for multilevel governance aimed at protecting citizens’ rights)  
  8. César Rodríguez-Garavito & Diana Rodríguez Franco, Radical Deprivation on Trial: The Impact of Judicial Activism on Socioeconomic Rights in the Global South, Cambridge University Press (2015) (offering an empirical examination and analyzing the contributions of structural injunctions issued by the Colombian, South African and Indian Courts in comparative perspective)
  9. Guadalupe Soriano-Barabino, Comparative Law for Legal Translators, New Trends on Translations Studies (2016) (emphasizing the importance of comparative law in legal translation and how to solve the inevitable problems that arise among several legal systems)
  10. Alison L. Young, Democratic Dialogue and the Constitution, Oxford University Press (2017) (analyzing the multiple forms of interaction between parliaments, courts and supranational courts in the framework of the UK constitutional regime in the wake of the ‘Brexit’)

Calls for Papers and Announcements

  1. The University of Essex, School of Law, is organizing a conference on  “Comparative Public Law in Europe”, on March 24 2017, at the British Academy (London). The conference is aimed at providing a thorough discussion on the contribution of public comparative law to the current political, legal constitutional, regulatory and administrative debates in Europe.   
  2. The Koç University Law Club is inviting Law students submissions for its 6th International Symposium on Law and Global Issues, which will be held on March 10 to 12, 2017, at Koç University. Interested participants must submit their proposals at kulawclub@ku.edu.tr by January 30, 2017.    
  3. The University of Essex will hold its 9th Human Rights in Asia Conference on March, 25, 2017, and invites speakers to participate in this academic event, which will focus on Gender and Sexuality. For more information, please email ahavkw@essex.ac.uk  . 
  4. The University of Aegean is inviting paper proposals for its Conference on “Contested Borderscapes: Transnational Geographies vis-à-vis Fortress Europe,” which will take place from September 28 to October 1, 2017 at the University of Aegean. Interested scholars must submit their proposals by March 1, 2017. Questions can be sent to contestborders@gmail.com.
  5. The Indian Constitutional Law Review calls for papers for its forthcoming number to be published in April 2017. Interested researchers can send their papers to info@iclrq.in by March 8, 2017.
  6. The Association of Constitutional Lawyers of Spain is accepting submissions for its XV Congress on “Parliamentarism and Parliaments: origins and challenges,” to be held in León (Spain), 30-31 March 2017. Proposals should be sent to contact@acoes.es by March 15, 2017.

Elsewhere Online

  1. Colin P.A. Jones, Examining a year in the life of the country’s Diet, The Japan Times
  2. Murali Krishnan, The Supreme Court of India – 67 years, Bar & Bench
  3. Paul Keanne, Are you legally my friend?, Irish Legal News
  4. Oliver Garner, “So Long (As) and Farewell?”: The United Kingdom Supreme Court in Miller, European Law Blog
  5. Christine Bell, Colombia’s Peace Accord in Comparative Perspective, Political Settlements Research Programme
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Published on January 30, 2017
Author:          Filed under: Developments
 

Five Questions with Jon Elster

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

Our fourth edition of “Five Questions with … ” features Jon Elster, Robert K. Merton Professor of the Social Sciences at Columbia University:

Jon Elster (Ph.D., University of Paris, 1972) taught at Paris, Oslo and Chicago before coming to Columbia. His publications include Ulysses and the Sirens, Sour Grapes, Making Sense of Marx, The Cement of Society, Solomonic Judgements, Local Justice, Political Psychology, Alchemies of the Mind, Ulysses Unbound, Closing the Books: Transitional Justice in Historical Perspective, Explaining Social Behavior, and Securities Against Misrule: Juries, Assemblies, Elections. His research interests include the theory of individual and of collective choice, the philosophy of the social sciences, the theory of distributive justice, and the history of social thought (Marx and Tocqueville). He is currently working on a comparative study of the Federal Convention (1787) and the first French constituent assembly (1789-1791).

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

I am hard at work on a comparative study of the Federal Convention of 1787 and the first French constituent assembly of 1789-91. I have written two theoretical chapters of about 50 pages each, a 100-page chapter on “America before 1787” and a 200-page chapter on “France before 1789.” I am now ready to move on the actual assemblies, including the events that triggered them.

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

I work best when I am in some kind of trance state, so that I can write for several days at a stretch without being disturbed or distracted. This is hard to do when I’m teaching, so in those periods I read background material and write up extensive notes on what I’ve read.

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

Alan Taylor, Diego Gambetta, (much of) Richard Posner, Bernard Manin, Ernst Fehr, Arlette Jouanna, Sheila Fitzpatrick, Francis Stufford.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

Two books that after 40 years or more still influence me are Thomas Schelling’s The Strategy of Conflict, and Paul Veyne’s Le pain et le Cirque. Even more important, Montaigne’s Essays (they get 34 entries in the Index to my most recent book).

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

(i) Decision-making under (Knightian) uncertainty. (ii) The relation between rationality and autonomy. (iii) Keynes’s dictum (paraphrased) that “Revolutions occur when tax-payers become the slaves of bond-holders.” (iv) The justice motive in social behavior.

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Published on January 27, 2017
Author:          Filed under: Reviews
 

The Irrelevance of Liberal Constitutionalists: Germany, India and the United States (I-CONnect Column)

Menaka Guruswamy, Fellow, Wissenschaftskolleg zu Berlin and Advocate, Supreme Court of India

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

A few days ago, I woke to the news that the German Constitutional Court had rejected a proposed ban on a far-right party accused of neo-Nazi links, because its members were deemed too ineffective to pose a real threat to democracy. The Independent reports that the Court rejected an attempt by the Bundesrat, comprising Germany’s 16 states, to outlaw the National Democratic Party (NPD), which has been described by intelligence services as racist and anti-Semitic.  But the far right is growing steadily in Germany.

Recently, the New York Times had a chilling story of the extreme within the far right party “the Alternative for Germany” or AfD – of an even more radical figure – Björn Höcke . Mr Höcke talks of the “vanquished German psyche” and criticizes the national culture of atonement for the holocaust. The AfD has grown in prominence over the last two years, due to their venomous opposition to Chancellor Angela Merkel’s refugee policy. More distressing, given that national elections are only months away, is a New York Times report indicating that the party is polling at nearly 15 percent. Germany has famously eschewed “charisma” driven politics and opted for the more low-key, thoughtful, clever, and efficient manner of Merkel and a consensus oriented coalition form of parliamentary government. But, Germany’s list electoral system (rather than first past the post) means that a party that wins 15 percent of the vote will be represented in Parliament.

In 1997, Fareed Zakaria writing in Foreign Affairs said, “from Peru to the Palestinian Authority, from Sierra Leone to Slovakia, from Pakistan to the Philippines, we see the rise of a disturbing phenomenon in international life — illiberal democracy.”  He was responding to concerns that free and fair elections might result in racists and fascists being elected to office. Over the last year, I’ve watched as India, Germany and the United States, three well established democracies — have steadily either started falling to or slowly settled into a comfortable illiberalism.

Read the rest of this entry…

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Published on January 25, 2017
Author:          Filed under: Analysis
 

What’s New in Public Law

Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

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

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

Developments in Constitutional Courts

  1. Germany’s Constitutional Court rejected a ban on the ‘neo-Nazi’ NPD party.
  2. The UK Supreme Court ruled that state immunity and the foreign act of state doctrine do not prevent claims against the British government for alleged involvement in unlawful rendition.
  3. The UK Supreme Court declared that detaining individuals solely for the purpose of interrogation violates their procedural rights guaranteed by the European Convention on Human Rights.
  4. Russia’s Constitutional Court declined to apply a 2014 ruling of the European Court of Human Rights.
  5. Egypt’s Supreme Administrative Court ruled against a government deal to transfer two islands to Saudi Arabia.
  6. The High Court of Tanzania held that third party consent to marriage of girls under 18 is unconstitutional.
  7. Gambia’s Supreme Court refused to hear the President’s petition to overturn his election defeat.

In the News

  1. Turkey’s Parliament voted in favor of constitutional reform.
  2. Italy enrolls Muslim imams in courses on the constitution.
  3. Iowa senators propose a constitutional amendment against gun control.
  4. Washington lawmakers move to end death penalty.
  5. Sri Lanka’s main Tamil party threatens to quit the constitution-making process if certain terms are not met.
  6. In Jordan, a military court ordered the arrest of rights activists over charges of insulting the King.
  7. In New Jersey, a court of appeals upheld the firing of a corrections officer who wore religious clothing.

New Scholarship

  1. Andrew Harding and Khin Khin Oo, Constitutionalism and Legal Change in Myanmar, (Hart, 2017) (discussing the extent and potential for the entrenchment of constitutionalism in Myanmar in a rapidly changing environment)
  2. Chintan Chandrachud, Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom (Oxford University Press, 2017) (examining the promise of a new model for the protection of rights by comparing judicial review under the Indian Constitution and the UK Human Rights Act)
  3. Arolda Elbasani, Governing Islam in Plural Societies: Religious Freedom, State Neutrality and Traditional Heritage, 19 J. of Balkan & Near Easter Studies 4 (2017) (outlining institutional compromises for accommodating Islam across plural polities)
  4. Cory Kopitzke, Realizing an Opportunity: Limiting the Power of the Executive in the Iraqi Constitution, 2 Indiana J. of Const. Design (2017) (providing a theory on the Iraqi constitutional reform)
  5. Valentino Cattelan, Legal Pluralism, Property Rights and the Paradigm of Islamic Economics, 30(1) JKAU: Islamic Economics (2017) (highlighting how the unique paradigm of Islamic economics can contribute to the promotion of a “plural market” in the global economy)
  6. Cary Coglianese and Christopher S. Yoo, The Bounds of Executive Discretion in the Regulatory State, 164 U. Pa. L. Rev. 1587 (2016) (explicating the conceptual contours underlying the contemporary debate over executive discretion, and its bounds, in the regulatory state)
  7. Patricia E. Skinner, Mutilation and the Law in Early Medieval Europe and India: A Comparative Study, 2 The Medieval Globe (2016) (examining the similarities and differences between corporal punishment in ancient and medieval Indian and early medieval European laws)
  8. Tom Brower, Constitutions as Counter-Curses: Revenue Allocation and the Resource Curse, 24 J. L. & Pol’y (2016) (explaining how constitutional revenue allocations can help counter the resource curse because they are more likely to endure and they can assist in managing and distributing natural resource revenue in an efficient and equitable fashion)
  9. Ryan Lirette and Alan D. Viard, Putting the Commerce Back in the Dormant Commerce Clause: State Taxes, State Subsidies, and Commerce Neutrality, 24 J. L. & Pol’y (2016) (arguing that commerce neutrality can be achieved by focusing on the prevention of discrimination against interstate commerce)
  10. Gabe Maldoff and Omer Tene, ‘Essential Equivalence’ and European Adequacy after Schrems: The Canadian Example, Wisconsin Int’l L. J. (forthcoming) (examining the new test for adequacy that flows from the Schrems ruling)
  11. Cary Coglianese and Kristin Firth, Separation of Powers Legitimacy: An Empirical Inquiry into Norms about Executive Power, 164 U. Pa. L. Rev. 1869 (2016) (examining the President’s directive authority under the decisions of the Supreme Court)
  12. Charles H. Koch Jr., Judicial Dialogue for Legal Multiculturalism, 25 Mich. J. Int’l L. 879 (2004) (asserting that judicial exchange rather than dominance has inherent advantages as a technique for evolving a global legal culture.)

Calls for Papers

  1. The Association of Young Legal Historians is holding its 23rd Annual Forum at the Universita Degli Studi di Napoli Federico II, Dipartimento di Giuriprudenzia (May 31st-June 1st, 2017). The theme of the forum is “History of Law and Other Humanities: Views of Legal Culture Across Time.”
  2. The University of Milan is organizing the international conference “Business and Human Rights: International Law Challenges, European Responses” to be held on May 29-30, 2017.
  3. The Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?” invites applications for three Fellowships from 1 September 2017.
  4. Stanford Law School and the University of Pennsylvania Law School welcomes submissions for the Tenth International Junior Faculty Forum.
  5. The Asian Journal of International Law is soliciting submissions.

Elsewhere Online

  1. Michael Ramsey, More on the Supreme Court Nomination, The Originalism Blog
  2. Ruthann Robson, Theorizing Protest on MLK Day, Constitutional Law Prof Blog
  3. Steven D. Schwinn, Can Post-9/11 Detainees Sue Federal Officials for Constitutional Violations?, Constitutional Law Prof Blog
  4. Argelia Queralt Jímenez, Una historia interminable — la relación entre España y Catalunya, Blog of the IACL, AIDC
  5. Taha Akyol, The ‘right to elect’ in Turkey, Daily News
  6. Molly Runkle, Timeline to confirm Scalia’s successor, SCOTUS Blog
  7. Salil Shetty, Defending Global Human Rights in the Trump Era, Amnesty
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Published on January 23, 2017
Author:          Filed under: Developments
 

Five Questions with Rosalind Dixon

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

Our third edition of “Five Questions with … ” features Rosalind Dixon, Professor of Law at the University of New South Wales, in Australia. Her official bio follows below:

Rosalind Dixon is a Professor of Law, at the University of New South Wales, Faculty of Law. She earned her BA and LLB from the University of New South Wales, and was an associate to the Chief Justice of Australia, the Hon. Murray Gleeson AC, before attending Harvard Law School, where she obtained an LLM and SJD. Her work focuses on comparative constitutional law and constitutional design, theories of constitutional dialogue and amendment, socio-economic rights and constitutional law and gender, and has been published in leading journals in the US, Canada, the UK and Australia, including the Cornell Law Review, University of Pennsylvania Journal of Constitutional Law, International Journal of Constitutional Law, American Journal of Comparative Law, Osgoode Hall Law Journal, Oxford Journal of Legal Studies and Sydney Law Review. She is co-editor, with Tom Ginsburg, of a leading handbook on comparative constitutional law, ComparativeConstitutional Law (Edward Elgar, 2011), and a related volume, Comparative Constitutional Law in Asia (Edward Elgar, 2014), co-editor (with Mark Tushnet and Susan Rose-Ackermann) of the Edward Elgar series on Constitutional and Administrative Law, on the editorial board of the Public Law Review, and associate editor of the Constitutions of the World series for Hart publishing.  Dixon is a member of the Gilbert + Tobin Centre of Public Law and deputy director of the Herbert Smith Freehills Initiative on Law and Economics. She previously served as an assistant professor at the University of Chicago Law School.

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

I am currently working on three main projects: a project on amendment with David Landau, which extends our prior work on the unconstitutional amendment doctrine and turns to questions of constitutional design; a project with Julie Suk on constitutions and economic inequality, which explores the general absence in democratic constitutions of any direct protection against discrimination based on wealth, income or poverty; and a piece on ‘responsive judicial review’, which continues my ongoing work on strong-weak forms of judicial review.

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

I write in the office generally… and like Mark Tushnet, try and do other professional reading (teaching preparation, reading this blog and colleagues’ work etc) in coffee shops and at home.  I try and write every weekday I am not teaching more than a few hours… though of course no one with small children can ever keep to a true routine.

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

I try and keep up with a range of comparative scholars–and tend to follow themes more than names.  It is hard to keep up with everything one wants to read, though. It is a great restatement to the field that there is so much high quality work being done–and that the reading list is so long as a result.

4. Is there an article or book that influenced you as a law student and that continues today to be an important reference point for you?

I continue to go back to Etienne Mureinik’s piece on the South African Constitution, on a culture of justification.  It is a short piece, and focused more on executive action than most of my own work, but captures something very deep about what I think constitutionalism stands for in a world of reasonable disagreement.  A related piece by my SJD advisor Frank Michelman, which I read early in my career and influenced me, is in the first issue of I.CON–on social rights and justification.  I am also continually re-reading work by Cass Sunstein on minimalism, Tushnet on weak review and Waldron on legislative constitutionalism.  David Strauss, my former colleague at Chicago, also wrote an excellent piece on ‘The Irrelevance of Constitutional  Amendment’ which I disagree with in large part, but which helped shape my early interest in the relationship between formal and informal constitutional change.

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

I think current political developments are pointing to a very important set of questions for all comparative constitutional scholars: how constitutions can respond to, but also guard against, the dangers inherent in the era of Brexit and Trump, i.e. isolationism, intolerance and authoritarian populism.  Leading scholars in the field,  including Sujit Choudhry, Sam Issacharoff, David Landau and now Tom Ginsburg and Aziz Huq, have already begun to think about these questions in the context of an important literature on dominant party democracy, democratic ‘hedging’ and ‘abusive constitutionalism’–but it is clear we have much more thinking to do in this area.  It is also equally clear that our thinking needs to extend to the economic roots of the current turn in democratic politics.  This is one reason I have recently agreed to co-lead a university wide ‘grand challenge’ at UNSW on inequality with a particular focus on economic inequality and its connection to democratic politics.

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Published on January 20, 2017
Author:          Filed under: Reviews
 

Installation Ceremony for Alexander Tsesis as Raymond and Mary Simon Chair in Constitutional Law

Richard Albert, Boston College Law School

Please join I-CONnect in congratulating Alex Tsesis on his installation as the Raymond and Mary Simon Chair in Constitutional Law at the Loyola University, Chicago, School of Law. Alex is a leading scholar of constitutional law, with a focus on free speech and civil rights. The induction ceremony, featuring remarks from Sanford Levinson, is now online and available here.

Professor Alexander Tsesis joined the Loyola University, Chicago, School of Law faculty in July 2007. He teaches Constitutional Law, First Amendment, Civil Procedure, and seminars devoted to civil rights issues and constitutional interpretation.

His articles have appeared in many law reviews, including the Columbia Law Review, Cornell Law Review, Minnesota Law Review, Northwestern University Law Review, and Texas Law Review. Professor Tsesis is a frequent presenter to law school faculties nationwide on issues involving constitutional law, free speech, and civil rights. He is the Series Editor of the Cambridge University Press Studies on Civil Rights and Civil Liberties. He has been an expert witness for the Canadian Department of Justice and a legislative advisor to Senator Edward Kennedy. Professor Tsesis has also served as an outside manuscript reviewer for the Cambridge University Press, University of Chicago Press, University of Illinois Press, New York University Press, Oxford University Press, and Yale University Press.

His books include For Liberty and Equality: The Life and Times of the Declaration of Independence (Oxford University Press, 2012, Kindle & NOOK 2012, Audible Audio Edition 2013, paperback 2014), We Shall Overcome: A History of Civil Rights and the Law (Yale University Press 2008, Kindle & NOOK 2008, paperback 2009), The Thirteenth Amendment and American Freedom: A Legal History (New York University Press 2004, NOOK 2010), Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements (New York Univ. Press, 2002, 2d prtg. 2004, Kindle & NOOK 2010).  He is also the editor of The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment (Columbia University Press, 2010, Kindle).

Many in the public law community know Alex as the driving force behind the Annual Constitutional Law Colloquium, entering its eighth edition in 2017. The Colloquium has attracted scholars from around the world and is today an important site for the rigorous exchange of ideas on all subjects in public law.

We thank Alex for all he has done for the community of public law scholars, and we congratulate him on this very special honor.

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Published on January 19, 2017
Author:          Filed under: Announcements; Call for Papers
 

Special Report on Romanian Parliamentary Elections

Bianca Selejan-Guțan, PhD, Professor of Constitutional Law, “Lucian Blaga” University of Sibiu, Romania

The most recent parliamentary elections in Romania, held last month in December 2016, did not bring about many surprises. In this special report, I shall draw the picture of the general context of the elections and I shall also try to present an accurate image of Romanian society 27 years after the fall of the totalitarian regime, as far as democratic values are concerned.

In November 2015, following the tragic events from “Colectiv”, the social-democrat Government led by Victor Ponta resigned under the pressure of the massive street protests against political corruption.[1] In these troubled circumstances, President Klaus Iohannis, elected in November 2014 after the highest turn-out since 1990[2], appointed a technocrat – Dacian Cioloș, a former European Commissioner for Agriculture – to form the new Government. Mr. Cioloș appointed a mainly technocratic Government, which had the task of running the country until the parliamentary elections in 2016.

The elections ended with a very low turn-out of 39.5%. This hasn’t been unusual in the last decade: the last parliamentary elections in 2012 had a 41.7% turn-out, and in 2008 it was even lower at 39.26%.

Read the rest of this entry…

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Published on January 18, 2017
Author:          Filed under: Developments
 

International Journal of Constitutional Law: Call for Reviews


Michaela Hailbronner, University of Pretoria, South Africa

ICON is celebrating its 15th anniversary in 2017, and we are running a short series on books that have inspired us and shaped how we think about comparative law, public international law or human rights (all broadly defined). Some senior scholars and justices will be contributing to the series, and we are now looking for two or three junior scholars (PhD, post-doc or junior faculty) to join them. Those selected will be asked write a short text (1000-2000 words) on a book that has been key in inspiring them to engage with these fields. The chosen book itself does not need to be a ‘law book’. Your text should explain the choice, how you encountered this particular book and why it prompted you to want to work and write on related questions. The successful texts will be published alongside the contributions by senior scholars in one of ICON’s 2017 print editions.
If you are interested in contributing to this series, send me a short email (mhailbronner(at)gmail.com) with the suggestion of a title, a one sentence description of the book and why it matters to you, and your current institutional affiliation.
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Published on January 18, 2017
Author:          Filed under: Announcements; Call for Papers
 

What’s New in Public Law

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

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

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

Developments in Constitutional Courts

  1. The Italian Constitutional Court rejected a trade union’s proposal to force labor law reform.
  2. The Canadian Supreme Court ruled that a landowner cannot sue the Alberta energy regulator because its immunity extends to claims of constitutional violations.  
  3. The New Jersey Supreme Court established factors such as age, family environment, and peer pressure for juvenile long-term sentencing.
  4. A California Appeals Court ruled that a pioneer law that requires prosecutors to decide whether to use lethal force is unconstitutional.
  5. Germany’s Supreme Court rejected challenges to the European Union – Canada trade deal signed last year.

In the News

  1. The Turkish Parliament started debates about rewriting the constitution.
  2. The Thai Parliament approved the King’s request for constitutional changes.
  3. The U.S. House of Representatives voted to begin repealing the Affordable Health Care Act (Obamacare).
  4. The North Dakota Senate rejected a bill to update the definition of marriage and recognize same-sex marital relationships.
  5. Thailand is considering death penalty sentencing for corruption convictions for Thai officials.
  6. The President of Kazakhstan agreed to constitutional reforms that would lead to separation of powers.
  7. The German Federal Constitutional Court is about to rule on banning a far-right party.
  8. Ireland is about to reconsider its legislation banning abortion.

New Scholarship

  1. Seema Mohapatra, Assisted reproduction inequality and marriage equality, Chicago-Kent Law Review (forthcoming) (examining how the advent of marriage equality may impact the rights of same sec couples to have biological children via assisted reproduction and surrogacy after Obergefell v. Hodges)
  2. Wang Jingen & Larry A. DiMatteo, Chinese Reception and Transplantation of Western Contract Law, 34 Berkeley Journal of International Law (2016), (studying the foreign and international law influences on Chinese contract law)
  3. Ngoc Son Bui, Vietnamese Constitutional Debate in Comparative Perspective, Asian Journal of Comparative Law, Volume 11, Issue 2, December 2016 (examining the debates on sensitive, substantive, and controversial constitutional questions pertaining to fundamental features of the socialist polity in Vietnam)
  4. Mirjam Kunkler & Tine Stein, Ernst-Wolfgang Bockenforde–Constitutional and Political Theory, Selected Writings, Oxford University Press (forthcoming) (Contextualizing bockenforde’s work through detailed section introductions and editors’ annotations throughout the articles and giving an insight into Bockenforde’s experiences as a judge at the Federal Constitutional Court of Germany)
  5. William Thomas Worster, Contracting Out of Non-Refoulement Protections (studying the three forms of contracting out on non-refoulement: agreements that establish facts, agreements that establish jurisdiction or agreements creating completing norms)
  6. Grainne De Burca, Human Rights Experimentalism, American Journal of International Law (forthcoming) (analyzing criticism made to the human rights system and responding to this criticism by surveying a body of recent empirical scholarship on the effectiveness of human rights treaties, and interpreting key aspects of the functioning of those treaties from the perspective of experimentalist governance theory)
  7. Joo-Cheong Tham & K. D. Ewing, Labour Clauses in the TPP and TTIP: A comparison Without Difference?, Melbourne Journal of International Law, Vol. 17, No. 2, 2016 (providing a critical analysis of the labor clauses in trade agreements, including the Trans-Pacific Partnership)
  8. Nadia E. Nedzel, Brexit, the Rule of Law, and Hayek’s Spontaneous Order, (comparing the rule of law in the common law and the civil law systems in light in the Brexit context)

Calls for Papers and Announcements

  1. The Nova Law School in Lisbon, Portugal calls for papers for its EU conference on “The Federal Experience of the European Union: Past, Present, and Future to be held on May 22-23, 2017 in Lisbon, Portugal.
  2. The Anti-Discrimination Law Review is inviting articles for its next volume to be published in 2017.
  3. The Central European University, Summer University announced its summer courses related to specific challenges in Africa to be held in Budapest, Hungary from July 3 to July 14, 2017.
  4. The King’s College London announced a series of seminars on the meaning of Brexit and its potential impact on different areas of law.
  5. Kent Critical Law Society calls for proposals for the Critical Law Conference 2017 which will take place on March 18 -19th, 2017 in Woolf College, University of Kent, Canterbury.
  6. The European Society of International Law, interest group on “International Environmental Law” calls for papers for its 13th ESIL Annual Conference on “Global Public Goods, Global Commons and Fundamental Values: The Responses of International Law”, to be held in Naples, on 7–9 September 2017.
  7. The Younger Comparativists Committee of the American Society of Comparative Law (YCC) welcomes submissions for the Phanor J. Eder LL.B./J.D. Prize in Comparative Law, in connection with its Sixth Annual Conference, to be held on April 28-29, 2017, at Koç University Law School in Istanbul, Turkey [deadline January 16th, 2017].

Elsewhere Online

  1. Dan Bilefsky, Muslim Girls in Switzerland Must Attend Swim Class With Boys, Court Says, The New York Times
  2. Jean-Philippe Derosier, La proportionnelle : non à l’overdose, Le Monde
  3. Maciej Kisilowski, Poland : A Country Without A Constitution, The EU Observer
  4. Linda Greenhouse, What the Chief Justice Should Have said, The New York Times
  5. Anne Smith & Monica McWilliams, Now is The Time To Re-open The Debate About Progressing The Northern Ireland Bill of Rights, UK Constitutional Law Association
  6. Nafees Ahmad, Racism in India: Equality Constitutionalism and Lego-Institutionalism response, Comparative Law Prof Blog
  7. Russel A. Miller, How To Kill An Idea: An American’s Observations on the NPD Party-Ban Proceedings, Verfasungsblog
  8. Gabor Halmai, The Hungarian Constitutional Court and Constitutional Identity, Verfasungsblog
  9. Anna Mrozek & Anna Sledzinska-Simon, Constitutional Review as an Indispensable Element of the Rule of Law? Poland as the Divided State between Political and Legal Constitutionalism, Verfasungsblog
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Published on January 16, 2017
Author:          Filed under: Developments