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I·CONnect

Blog of the International Journal of Constitutional Law

The Party Fragmentation Paradox in Brazil: A Shield Against Authoritarianism?

Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

Brazil features possibly the most fragmented party system in the world. At this current legislative term, there are 25 parties with representation in the Lower House, and 16 in the Senate. The level of fragmentation is so steep that the biggest party in the Lower House – the Worker’s Party (PT) – and the biggest party in the Senate – the Brazilian Democratic Movement (MDB) – amount to merely 10.5% and 16% of each House, respectively. In order for a government to reach the needed support in Congress to advance its agenda, presidents must build stable and disciplined political coalitions, a system that has long been called “coalitional presidentialism.”[1] If they are not able to do so, the chances of a political crisis are real – and the two presidential impeachments since the transition to democracy in 1985 (Collor de Mello, in 1992,[2] and Dilma Rousseff, in 2016) are evidence of what may happen when things go terribly wrong. Interestingly enough, such a high level of party fragmentation, which is a structural dysfunctionality of the Brazilian political system, may paradoxically serve as a shield against radical and authoritarian intents by the executive power. Brazil may be experiencing such a paradox: a dysfunctionality of its political system may well function to protect democracy against a president, Jair Bolsonaro, whose authoritarian mindset is undisputed.

Such a phenomenon seems unexpected and, comparatively, underexplored in the constitutional literature. Indeed, most analyses of the current phenomenon of democratic decay in the world focus on a series of markers to describe and diagnose the level of degradation of democratic credentials, such as rising polarization, court-packings, strategic use of referenda, disruption of the political system (normally associated with an anti-systemic and antipluralist­ rhetoric), attacks on civil liberties and on the media, rejection of the democratic rules of the game,[3] “colonization” of the state at all levels,[4] populism, etc. Constitutional lawyers, in this scenario, tend to deposit their faith in constitutional courts as the last resource to safeguard democracy, and it is no wonder that also the constitutional literature tends to focus on courts. Parliaments, on the other hand, tend to be much less explored, not only because constitutional law has a natural bias towards courts, but also because, as observed in numerous cases of advanced democratic decay such as in Hungary[5]and Turkey,[6] parliaments were unable to function as an effective check on the executive power – quite the opposite, in fact.

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Published on October 24, 2019
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Book Review: Paul Daly on Oran Doyle’s “The Constitution of Ireland: A Contextual Analysis”


[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Paul Daly reviews Oran Doyle’s book on The Constitution of Ireland: A Contextual Analysis (Hart Publishing, Oxford, 2018)


Paul Daly, University Research Chair in Administrative Law & Governance, University of Ottawa

Oran Doyle’s contribution to Hart’s Constitutional Systems of the World series should be read by anyone with an interest in Irish constitutional law and also by comparative constitutional lawyers.

From a domestic perspective, Doyle paints a vivid portrait of the Irish Constitution, a text which came into force in 1937 and has survived – intact, for the most part – to the present day, comfortably outliving most attempts to codify in a single document the basic rules, principles and standards relating to the structure of the state and its relationship to the people within it. Doyle views the Irish Constitution as a “master-text document” which “contains most of the constitutional laws”, but argues that a focus on text would be erroneous, for “it is supplemented and informed by other constitutional laws and practices” (19). Doyle’s “central argument” is that notwithstanding the tripartite separation of powers between executive, legislative and judicial branches envisaged by Article 6, “the constitutional structure is built on a bipartite separation of power between the Government and the courts” (19), albeit that the requirement to secure popular support in a referendum for formal constitutional change serves as a “significant check” on the power of the Government (20).

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Published on October 23, 2019
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Now Available: The 2018 Global Review of Constitutional Law


Richard Albert, The University of Texas at Austin, and David Landau, Florida State University

I·CONnect is pleased to partner with the Clough Center for the Study of Constitutional Democracy to bring you the third edition of the I·CONnect-Clough Center Global Review of Constitutional Law. The report may be downloaded here for free.

This 2018 edition of the Global Review of Constitutional Law includes reports from 65 jurisdictions. The reports offer a detailed but relatively brief overview of constitutional developments and cases in the past calendar year. This year’s coverage has grown from the 61 jurisdictions covered last year.

The reports are authored by scholars or judges, and sometimes both together as part of a team.

From the beginning, our objective for this first-of-its-kind volume has been to offer readers systematic knowledge that has previously been limited mainly to local networks. By making this information available to the larger field of public law in an easily digestible format, we aim to increase the base of knowledge upon which scholars and judges can draw. We expect to repeat the project every year with new annual reports, and we hope over time that coverage will grow to an even wider range of countries. We invite scholars and jurists from the presently non-covered jurisdictions to contact us about contributing a report in next year’s Global Review.

We are immensely grateful to the Clough Center for the Study of Constitutional Democracy at Boston College, directed by Professor Vlad Perju, for partnering with us in this project. Since becoming its Director, Vlad Perju has transformed the Clough Center into a leading site in the English-speaking world for the study of constitutions and constitutionalism. We thank him for sharing our vision of the possibilities for this annual volume, and for all he has done to nurture this collaboration with the care and support that he has invested in the many other successful projects he has innovated in his capacity as Director of the Clough Center and as a scholar of legal theory, EU law, and comparative public law.

We give great thanks to our many distinguished country authors for producing their informative and insightful reports.

We thank our co-editors Pietro Faraguna and Simon Drugda for their instrumental role in making this Global Review a success.

We thank also Gaurie Pandey, Manager of Creative Services at the Center for Centers, for creating a truly fabulous design for this volume from cover to cover.

Finally, we thank Gráinne de Búrca and Joseph Weiler, Co-Editors-in-Chief of I·CON, for accepting our recommendation to publish some of these outstanding contributions in a recent issue of I·CON.

We invite comments and inquiries to either of us via email at contact.iconnect@gmail.com.

The 2018 Global Review of Constitutional Law is available for free here.

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Published on October 22, 2019
Author:          Filed under: Developments
 

What’s New in Public Law


Chiara Graziani, Ph.D. Candidate and Research Fellow in 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 Human Rights ruled that Turkey violated art. 3 of the European Convention of Human Rights (prohibition of torture) in a case regarding the detention of immigrants pending their deportation.
  2. The European Court of Human Rights held that Italy’s tough prison regime for those who committed mafia-type crimes and refused to cooperate with the justice system violates art. 3 of the European Convention of Human Rights.  
  3. The Supreme Court of Spain convicted 12 former Catalan politicians for their role in the secession bid in 2017.
  4. The Scotland Supreme Court delayed its decision on whether to order Boris Johnson to ask for a Brexit extension if he cannot secure a deal.
  5. The Conseil Constitutionnel of France upheld a law banning palm oil from biofuel scheme.
  6. The UK Supreme Court handed down a judgment on whether a District Judge qualifies as a ‘worker’ or a ‘person in Crown employment’ for the purpose of the protection given to whistle-blowers.

In the News

  1. The UK Prime Minister, Boris Johnson, and the President of the European Commission, Jean-Claude Juncker, jointly announced agreement on a new Brexit deal, despite the refusal of the Democratic Unionist party to back it.
  2. New provisions on national cybersecurity were adopted by the Italian government.
  3. A new law criminalizing abuse of authority was enacted in Brazil.
  4. Drone flight guidelines were amended in Japan.
  5. US President Donald Trump vetoed a joint resolution of Congress aimed at terminating his declaration of a national emergency on the Southern border with Mexico.
  6. The European Commission filed a case against Poland over new measures on the judiciary.

New Scholarship

  1. Jeremy D. Bailey, Populism and Presidential Representation, Critical Review (2019) (discussing questions raised by populism about the extent to which public opinion should be a legitimate foundation for executive power)
  2. Michael D. Breidenbach and Owen Anderson (eds.), The Cambridge Companion to the First Amendment and Religious Liberty (2020) (addressing the religion clauses of the First Amendment with a focus on its philosophical foundations, historical developments, and legal and political implications)
  3. Björn Dressel and Cristina Regina Bonoan, Southeast Asia’s Troubling Elections: Duterte Versus the Rule of Law, 30 Journal of Democracy (2019) (analyzing efforts to undermine the Philippines’ post-1987 constitutional order through legal means under the current Duterte presidency)
  4. Elspeth Guild, Steve Peers, Jonathan Tomkin, The EU Citizenship Directive: A Commentary (2019) (commenting the EU Citizenship Directive with a focus on most recent case law and on rights of EU and UK citizens after Brexit)
  5. Olivier Duhamel, Guillaume Tusseau, Droit constitutionnel et institutions politiques (2020) (addressing latest developments on French constitutional law and keeping an eye on theoretical and comparative aspects)
  6. Valsamis Mitsilegas, Saskia Hufnagel, Anton Moiseienko (eds.), Research Handbook on Transnational Crime (2019) (addressing the challenges of transnational crime in an interconnected world from a multidisciplinary perspective)
  7. Sybil Sharpe, Search and Surveillance. The Movement from Evidence to Information (2019) (providing a new definition of the powers of law enforcers to gather evidence and information for use in criminal proceedings, drawing upon international case studies)
  8. Stephen Skinner, Lethal Force, the Right to Life and the ECHR (2019) (addressing the ECtHR’s case law on the use of lethal force and examining the connection, set by the Court, between the right to life and democratic society)

Call for Papers and Announcements

  1. The Trinity College at Oxford University welcomes applications for a Junior Research Fellow in Constitutional Law and/or Constitutional Theory. Applications should be submitted no later than November 14, 2019.
  2. The Law and Society Association’s Socio-Legal Approaches to Property Collaborative Research Network (SLAP-CRN) invites submissions from scholars at any stage of their careers on any issues related to the treatment of land and other property no later than October 25, 2019. Papers will be presented at the Law and Society Association Annual Meeting, May 28-31, 2020 in Denver, Colorado.
  3. The Department of Law of the University of Pisa hosts a two-days international workshop on ‘Gender based approaches to the law and juris dictio in the European Union’ on June 19-20, in Pisa, within the frame of the European Law & Gender Jean Monnet Module. Abstract proposals are accepted until January 15, 2020.
  4. The Universidad Austral de Chile issued a call for papers for a Seminar on “Intellectual, Cognitive and Psychosocial Disability in Latin America: legal approaches and reforms”, to be held in Santiago de Chile on June 4-5, 2020. The deadline for submissions is January 20, 2020.
  5. The Academic Council on the United Nations System (ACUNS) issues a call for papers for its 2020 Annual Meeting, with the theme: UN @ 75: The Future of Partnership and Multilateralism. The conference will be held June 25-27, 2020 at London Metropolitan University. The deadline for submissions of proposal is February 10, 2020.
  6. The Law Department of Universidade Portucalense Infante D. Henrique (UPT) and the Instituto Jurídico Portucalense invite submissions to attend its 2020 Conference on “Have Fundamental Rights gone too far?”. Proposals have to be sent no later than February 15, 2020. The Conference will be held in Porto on May 7-8, 2020.

Elsewhere Online

  1. Theodore Christakis, 21 Thoughts and Questions about the UK-US CLOUD Act Agreement: (and an Explanation of How it Works – with Charts), European Law Blog
  2. Pedro Felipe de Oliveira Santos, What Kind of Judge are You?, IACL-AIDC Blog
  3. Daniel Halberstam, EU Brexit Litigation: A Short Guide to the Perplexed, UK Constitutional Law Association Blog
  4. Oliver Garner, Could the European Council Impose a ‘Qualitative Condition’ to Hold a Second Referendum or General Election on a New Brexit Extension?, European Law Blog
  5. Giorgio Grasso, The European Ombudsman as an Insurmountable Roadblock?, Verfassungsblog
  6. César Landa Arroyo, Is the Dissolution of the Peruvian Congress a Constitutional Measure?, IACL-AIDC Blog
  7. Ben Saul, United Nations Backslides on Human Rights in Counterterrorism, Lawfare
  8. Lorna Woods, The CJEU rules on consent to cookies under data protection law, EU Law Analysis

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Published on October 21, 2019
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Changing the Constitution in the Guise of Preserving It


–Qinhao Zhu, University of Oxford

In most professions creativity is good. But the value of judicial creativity is more suspect. There’s the suspicion that the creative judge is cheating. Hence, judges often portray their decisions as unoriginal. At one time in England it was said that the common law had existed since the creation of the world (Wallyng v Meger). Since then the stories have become more believable. One not quite believable story is told by the UK Supreme Court in Miller (No 2)/Cherry. The villain is a Government that has prorogued Parliament for a nefarious reason. It’s hinted that the reason is delivering Brexit, perhaps no-deal Brexit, but this is never made explicit. Like other good stories this one is shown, not told. The protagonist is the Court. It is the guardian of hallowed constitutional principles. By ruling prorogation to be unlawful, it showed the Government its constitutional place, under the law and Parliament. But the logic of this story breaks down upon examination. It is really the Court that has turned the constitution upside down, usurping the powers that had once rightfully belonged to the executive and legislature.

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Published on October 18, 2019
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Announcement: New Book Series in Latin American and Caribbean Constitutionalisms


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

I am pleased to announce that Hart Publishing has commissioned the creation of a new series of books in the field of comparative constitutional studies.

The new Hart Studies in Latin American and Caribbean Constitutionalisms will have three co-editors who will work closely to develop the series: Carlos Bernal, a Justice on the Constitutional Court of Colombia; Catarina Santos Botelho, Assistant Professor and Department Chair of Constitutional Law at the Porto Faculty of Law at the Catholic University of Portugal; and me, Richard Albert.

We welcome book proposals from scholars of all levels of seniority.

Here is a short description of the series and its focus:

The Hart Studies in Latin American and Caribbean Constitutionalisms series publishes outstanding scholarship on the law and politics of the many varieties of constitutionalism in Latin America and the Caribbean. From single-jurisdiction and cross-national studies to inquiries into the relationship between constitutional and international law in multilevel legal orders in the region, the series welcomes submissions that identify, contextualise, illuminate, and theorise the origins, challenges, foundations, and future of constitutional law and politics in these understudied—but fascinating and important—parts of the world. Scholarship published in this series covers the range of methodologies in law and politics, including but not limited to comparative, doctrinal, empirical, historical, and theoretical perspectives. The series editors invite preliminary inquiries as well as full proposals for monographs and edited volumes in what aims to be the leading forum for the publication of exceptional public law scholarship on Latin America and the Caribbean.

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Published on October 17, 2019
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Conference Report: Beyond the Usual Suspects and Usual Domains? An ICON-S (Singapore) Symposium

Maartje De Visser, Singapore Management University, and Jaclyn L. Neo, National University of Singapore

Avid readers of this blog need no reminder of the clarion call for those with an interest in constitutionalism to move beyond the ‘usual suspects’. Indeed, the very establishment of ICON-S was inspired by the desire to mainstream an interdisciplinary approach to public law writ large. The imperative to cast the net widely seems particularly salient for the Singapore Chapter of ICON-S, of which we are the founding co-chairs. Singapore is a relatively young nation that is outward-looking in many ways, including to cement its status as a regional economic hotspot; its citizenry is racially and religiously diverse, and it has elevated the use of technocracy as the preferred mode of governance to an art.

On 19 September 2019, the Singapore Chapter organized its second annual event, co-organized by the National University of Singapore Centre for Asian Legal Studies and the Singapore Management University School of Law. In line with its mission, academics, legal practitioners, representatives of State bodies, civil society, and policy-makers came together to interrogate constitutionalism along two dimensions. The first panel queried the use of interdisciplinary methodologies to understand and study the constitution. The speakers featured were Ran Hirschl (who was then Kwa Geok Choo Visiting Professor at the National University of Singapore), Kevin YL Tan (National University of Singapore), Mark Findlay (Singapore Management University), and Corinna Lim (AWARE, the main women’s rights NGO in Singapore), with Dian Shah (National University of Singapore) as moderator. The second panel addressed the question how constitutional supremacy can be assured in the age of statutes. The frequency with which statutes are adopted concomitantly increases the likelihood of bills being introduced that have a knock-on effect on constitutional rights and rules. The panel was comprised of Chang Wen Chen (National Chiao Tung University/National Taiwan University), Priscilla Chia (Peter Low & Choo LLC), Lanx Goh (previously Singapore Personal Data Protection Commission and now at Klook Travel Technology), Kenny Chng (Singapore Management University), Hui Choon Kuen (Attorney-General Chambers’ Academy), with Jack Lee (Singapore Academy of Law) as moderator. 

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Published on October 16, 2019
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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) The US Supreme Court heard oral arguments in two landmark cases concerning LGBTQ+ employment rights.

(2) The Constitutional Court of Guatemala issued a provisional injunction to stop a controversial commission of inquiry into the work of a United Nations-backed anti-corruption body.

(3) The Constitutional Court of Turkey ruled that former PM’s constitutional right of freedom of speech and expression has been violated.

(4) The Constitutional Court of Turkey ruled that an electric shock after touching the door of a transformer building constitutes a violation of the right to life.

(5) The Constitutional Court of South Africa held that a university policy which gives preference to English over Afrikaans is constitutional.

In the News

(1) The US House of Representatives introduces a bill to deter foreign interference in elections.

(2) Ghana will hold a referendum on a constitutional amendment allowing political parties to participate in district elections

(3) The Parliament of Azerbaijan approves the appointment of a new Prime Minister.

(4) Lawmakers in Costa Rica reject a proposal to cut the second round of voting in presidential elections.

(5) The Parliament of Italy voted to decrease the number of representatives in both houses.

New Scholarship

(1) Richard Albert, Menaka Guruswamy, and Nishchal Basnyat (eds), Founding Moments in Constitutionalism (2019) (theorizing and illustrating the phenomenon of a constitutional founding moment)

(2) Juan C. Herrera, Binding Consent of Indigenous Peoples in Colombia: An Example of Transformative Constitutionalism, in Claire Wright and Alexandra Tomaselli (eds), The Prior Consultation of Indigenous Peoples in Latin America: Inside the Implementation Gap (2019) (highlighting several limitations on the rights and mechanisms imply for Indigenous people)

(3) Richard Schragger and Micah Schwartzman, Establishment Clause Inversion in the Bladensburg Cross Case, ACS Supreme Court Review 2018-2019 (arguing that American Legion represents a significant development in the dismantling of Establishment Clause jurisprudence)

(4) P. Takis Tridimas, and Giulia Gentile, The Essence of Rights: An Unreliable Boundary?, 20 German Law Journal (2019) (examining the essence clause of the Charter in light of the ECJ case law and the constitutional traditions of the Member States and assesses its role in the framework of fundamental rights protection in EU law)

(5) Martin Krčmář, Personal Liability for Anticompetitive Conduct in the Context of the Trade Agreement between EU and Colombia, Peru and Ecuador (2019) (providing specific examples of the decision-making practices adopted by the competition authorities which have focused on identifying the attribution of company representatives’ conduct)

(6) Cass R. Sunstein, Behaviorally Informed Policy: A Brisk Progress Report (2019) (offering a progress report on behaviorally informed policy and law, while also providing some conceptual clarifications)

(7) Rafael Domingo, The Individual in Contemporary Sacred Natural Law, in Anne Peter and Tom Sparks (eds), The Individual in International Law. History and Theory (2021) (arguing for the adequacy and consistency of a human-centred international law framework from the perspective of the so-called sacred natural law theories)

(8) Gregory M. Dickinson, A Computational Analysis of Oral Argument in the Supreme Court, 28 Cornell Journal of Law and Public Policy (2019) (introducing a construct predictive models of judicial decision making based not on oral argument’s superficial features or factors external to oral argument)

(9) Melissa Crouch, The Constitution of Myanmar: A Contextual Analysis (2019) (describing how the process of constitution-making and the substance of the 2008 Constitution contribute to its lack of credibility and fuel demands for reform)

(10) Graham Butler, Constitutional Law of the EU’s Common Foreign and Security Policy: Competence and Institutions in External Relations (2019) (arguing that the legal framework for EU foreign affairs must adapt to allow for a more assertive Europe in the world)

Call for Papers and Announcements

(1) Deakin Law School hosts a conference on “The Future of Freedom of Speech and Religion after Israel Folau,” to investigate significant aspects of the Folau matter and its implications for Australian law and society on December 7, 2019, at the Law Institute of Victoria, in Melbourne.

(2) The University of Sofia “St. Kliment Ohridski,” Faculty of Law and the Sofia Legal Science Network welcome submissions for the IV Sofia Legal Science Week on “Law and Revolution.”

(3) The 2020 ESIL Research Forum will take place on April 23-24, 2020, at the Department of Law, University of Catania, Italy. The ESIL Research Forum is a scholarly conference that promotes engagement with research in progress by members of the Society. It has a small and intensive format. The Forum targets scholars at an early stage of their careers.

(4) The University of Portsmouth Law School will host the Socio-Legal Studies Association (SLSA) Annual Conference 2020 to be held from Wednesday April 1-3, 2020.

(5) A Call for Applications has been issued for an early career researchers’ workshop on “Convergence and Differentiation in European and Comparative Administrative Law,” to be held on February 14, 2020, in Brussels. The deadline for application is 15th December.

Elsewhere online

(1) Gaurav Mukherjee, Miller/Cherry 2 Goes to Kashmir, Verfassungsblog

(2) Adrian Waters, Will the reduction of legislators fix Italian democracy?, ConstitutionNet

(3) Gerard Magliocca, Not A Constitutional Crisis Yet, PrawfsBlawg

(4) Daniel Tavela Luís and Luís Antônio G. de Andrade, A New Path For Public Utility Expropriations Disputes In Brazil: Arbitration And Mediation, Kluwer Arbitration Blog

(5) Lucy Ferriss, It’s 2040. We Need to Keep Abortion Legal in New York, The New York Times

(6) A Practical Guide to Constitution Building: Decentralized Forms of Government, ConstitutionNet

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Published on October 14, 2019
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Book Review: John Otrompke on Arthur Peltomaa’s “Understanding Unconstitutionality: How a Country Lost Its Way”


[Editor’s Note: In this installment of I•CONnect’s Book Review Series, John Otrompke reviews Arthur Peltomaa’s book on Understanding Unconstitutionality: How a Country Lost Its Way (Teja Press, 2018).


–John Otrompke, J.D.

In 1985, the Supreme Court of Canada declared that all of the laws of Manitoba enacted in the last 95 years had been unconstitutional, because they had not been translated into French. Even the seemingly-apparent remedy of simply translating all the laws and regulations might be sufficient, because even the laws governing the election of legislators were unconstitutional. In a case called Re Manitoba Language Rights, the Supreme Court suspended its declaration of unconstitutionality under s. 52(1) of the nation’s constitution (which had only recently been enacted in 1982), giving time for the Manitoba legislature to comply with its duty.[1]

This led to a trend in Canadian constitutional law that motivated author Arthur Peltomaa to pen an impassioned argument against the case and its progeny. “Understanding Unconstitutionality: How a Country Lost Its Way” is a thorough and mostly well-written analysis of suspended declarations of unconstitutionality.

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Published on October 13, 2019
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What the Harvard Decision Gets Right about Affirmative Action

Yuvraj Joshi, Doctoral Candidate, Yale Law School

A federal judge has upheld Harvard College’s admissions program against a challenge from Edward Blum. Her opinion reinforces what I interpret to be the true purpose of affirmative action in the U.S., which is the pursuit of racial transition.

Blum is the president of Students for Fair Admission (SFFA), an organization with the mission of eliminating the use of race and ethnicity in college admissions. He is responsible for orchestrating multiple anti-affirmative action lawsuits; he brought Abigail Fisher’s unsuccessful case against the University of Texas Austin before the Supreme Court. In his latest attempt to end affirmative action, Blum alleges that Harvard’s admissions practices have “disproportionately negative effect on Asian Americans” compared to white applicants.

U.S. District Judge Allison D. Burroughs of the U.S. District Court for Massachusetts concluded that Harvard does not discriminate against Asian Americans in its admissions process. Judge Burroughs’ opinion follows longstanding U.S. Supreme Court precedent that allows universities to consider race as one of several factors in the pursuit of a diverse student body. A conservative Supreme Court bolstered by a pair of Trump nominees may be willing to depart from that precedent. But at least for now, Judge Burroughs’ opinion is right on the law.

What the opinion also gets right is the aim of affirmative action. As I argue in Affirmative Action as Transitional Justice and other forthcoming work, the purpose of affirmative action in higher education is not merely to diversify the student body; instead, its purpose is to facilitate and negotiate the nation’s passage from its racial past to its racial future.

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Published on October 11, 2019
Author:          Filed under: Developments