Volume 21 Issue 3
Table of Contents
Letters to the Editors
Ming-Sung Kuo, Naming and (Mis)Informing in Academic Publications
Articles
Andrew Edgar and Kevin M. Stack, Parallel incorporation and public law
Anna Wallerman Ghavanini, Gunnar Grendstad, and Johan Karlsson Schaffer, Institutions that define the policymaking role of courts: A comparative analysis of the supreme courts of Scandinavia
George Duke, Can the people exercise constituent power?
Urška Šadl, Lucía López-Zurita and Sebastiano Piccolo, Route 66: Mutations of the internal market explored through the prism of citation networks
Critical Review of Jurisprudence
I•CON: Debate!
Marisa Iglesias Vila, Who misunderstands the margin of appreciation? A reply to Eva Brems
Review Essays
Thomas M. Keck, Free speech in an age of democratic backsliding. Review of Richard L. Hasen. Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It; Jacob Mchangama. Free Speech: A History from Socrates to Social Media
Gaurav Mukherjee, The political economy of effective judicial remedies. Review of Aziz Z. Huq, The Collapse of Constitutional Remedies;Kent Roach, Remedies for Human Rights Violations: A Two-Track Approach to Supra-national and National Law
Book Reviews
Matthew J. Nelson. Review of Moeen Cheema. Courting Constitutionalism: The Politics of Public Law and Judicial Review in Pakistan
Leena Grover. Review of Emmanuel H.D. De Groof & Micha Wiebusch (eds),International Law and Transitional Governance: Critical Perspectives
Martin Krygier. Review of Tímea Drinóczi & Agnieszka Bień-Kacała, Illiberal Constitutionalism in Poland and Hungary: The Deterioration of Democracy, Misuse of Human Rights and Abuse of the Rule of Law
ABSTRACTS
Andrew Edgar and Kevin M. Stack, Parallel incorporation and public law
Over the past fifty years, domestic regulators have turned to standards developed by private organizations as a means of complying with international law commitments to eliminate barriers to trade. What impact does this phenomenon of parallel incorporation, in which regulators in different countries incorporate the same private standards, have on domestic administrative law and public law? Through a case study of US and Australian regulators’ adoption of the same standards in aviation, the article exposes how parallel incorporation exacerbates existing accountability deficits of administration, contributes to the hollowing out of public capacity to review these incorporations, defies conventional understandings of delegation, and breaches basic understanding of rulemaking processes in both the United States and Australia. Using conventional administrative processes to implement solutions compelled by international commitments strains and transforms these processes. In this context, trade law imperatives result in accommodations from domestic public law not the reverse.
Anna Wallerman Ghavanini, Gunnar Grendstad, and Johan Karlsson Schaffer, Institutions that define the policymaking role of courts: A comparative analysis of the supreme courts of Scandinavia
Scandinavian supreme courts have been described as deferential to the elected branches of government and reluctant to exercise their limited review powers. However, in recent years, these courts have increasingly decided cases impacting public policy making. Yet we lack comprehensive, comparative knowledge about the legal rules and judicial practices that govern the policymaking role of courts in Denmark, Norway, and Sweden. Addressing this gap, this article develops an analytical framework and systematically compares the evolving laws, rules, and practices that regulate the supreme courts’ constitutional review powers and court administration, the appointment and tenure of judges, access to the supreme courts, and their decision-making procedures over the last fifty years. The comparison reveals notable institutional differences across these judiciaries and finds that judicial expansion in Scandinavia has coincided with institutional changes that enhance judicial autonomy. This suggests that consequential reforms of domestic origin may have played a larger part in this development than previously appreciated.
George Duke, Can the people exercise constituent power?
Contemporary constitutional theorists sometimes use the phrase “the constituent power of the people” in a way that is, on closer examination, ambiguous. It could mean that the people is the bearer of constituent power, that the people exercises constituent power, or both. This article examines this pivotal, yet rarely explicitly thematized, distinction internal to the concept of constituent power and considers its downstream implications for constitutional theory. The proposition that the people is the bearer of constituent power, I argue, is best read narrowly as a claim about the proper subject of attribution for major constitutional change. The proposition that the people exercises constituent power, however, is best read either as (i) a claim about the capacity of citizens to effect constitutional change through collective deliberation, or (ii) shorthand for the claim that representatives should always engage in processes of constitutional change on behalf of citizens. If these readings are true, the article concludes, then this has important consequences for the theory and practice of constituent power and for its relationship with political representation.
Urška Šadl, Lucía López-Zurita and Sebastiano Piccolo, Route 66: Mutations of the internal market explored through the prism of citation networks
The article rethinks the mutation of the internal market, charting its metamorphosis from a free trade area to a maze of common policies. It examines the case law of the Court of Justice of the European Union from a novel, structural perspective which uses community detection techniques to shed new light on this amply theorized process. The analysis reveals an irreversible shift in the method of integration, from a de-regulatory removal of national rules obstructing free movement (liberalization) to a re-regulatory adoption of common rules and standards promoting free movement (harmonization). The shift, which occurred between 2007 and 2010, signals a new rationale of integration and a reprioritization of the European Union’s economic and non-economic objectives. Finally, the article questions whether said shift calls for a new authorization of Europe to regulate.
Jannika Jahn, Domestic courts as guarantors of international climate cooperation: Insights from the German Constitutional Court’s climate decision
Domestic courts in various countries have begun to scrutinize the political branches’ responses to climate change. A central argument against court interventions pushing individual state’s climate actions is that the individual state cannot effectively promote climate protection, and, instead, will suffer economic disadvantages in global competition. The article counters this criticism with the thesis that judicial interventions contribute to an effective realization of climate protection if they strengthen international cooperation. To substantiate the thesis, the article draws on the economic analysis of law to examine states’ decision-making rationalities for entering international agreements. It then analyzes how judicial interventions may influence these parameters, with a particular focus on the recent climate decision of the German Constitutional Court and embeds the domestic court decisions in an emerging public relations law that closely interlinks constitutional and international climate law.
Eva Brems, Misunderstanding the margin? The reception of the ECtHR’s margin of appreciation at the national level
This exploratory article focuses on the receiving end of the margin of appreciation doctrine of the European Court of Human Rights (ECtHR), that is to stay, the response of national-level legislators and courts to ECtHR case law involving other states parties, that grants national authorities a wide margin of appreciation. The paper explores the risk that national authorities might misinterpret the margin of appreciation in such cases as a marker of human rights clearance of a rights-restrictive practice as such or as a prompt for domestic courts toward deference in their relationship with the legislative and executive powers. The paper finds anecdotal evidence of such misinterpretation by domestic legislators in the reception of SAS v. France. In addition, an examination of recent fundamental rights case law of the Belgian Constitutional Court illustrates the existence of a problem of misunderstanding the margin of appreciation at the level of domestic courts.
Marisa Iglesias Vila, Who misunderstands the margin of appreciation? A reply to Eva Brems
This reply offers a few critical reflections that tie into the assumptions of Eva Brem’s interesting study of the risk of national authorities’ misunderstandings of the margin of appreciation conceded by the European Court of Human Rights (ECtHR). Taking on board a cooperative conception of the principle of subsidiarity, this reply first questions the adequacy of the distinction between a systemic and a normative dimension of the margin of appreciation as the proper basis for assessing the risk of domestic misunderstanding of the margin of appreciation. Next, it raises some objections to the analysis that Brems makes of the ECtHR judgment in S.A.S. v. France, particularly, her application of the normative dimension of the margin of appreciation to this example of possible misunderstanding. The reply argues that Brems’s assumption that the ECtHR conducted a procedural rationality review of the French burqa ban minimizes Strasbourg’s own contribution to the risk that other states, in similar cases, may misunderstand how human rights are to be applied to avoid misinterpreting their national margin of appreciation.
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