What’s New in Public Law

—Simon Drugda, Centre for Socio-Legal Studies, University of Oxford (UK)

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 ruled that a court’s mistake in calculating a sentence under the advisory US Sentencing Guidelines should result in relief for the defendant, even if the original sentence was within the federal guidelines.
2. The US Supreme Court ruled that administrative law judges are “officers of the law” under the Appointments Clause.
3. The US Supreme Court held that the Commerce Clause of the Constitution does not prohibit states from collecting taxes from online retailers with no physical presence in the state.
4. The US Supreme Court held that police need a warrant to get location information from cellphone tower sites.
5. The US supreme Court held a defendant who consents to sequential trials for multiple, overlapping offenses loses double jeopardy protection.
6. The US supreme Court held that simultaneous service by judges on two military courts does not violate the dual-officeholder ban.
7. The Supreme Court of Philippines upheld the removal of its CJ Maria Lourdes Sereno after her May 30 motion for reconsideration.
8. The Constitutional Court of South Africa ruled that political parties must disclose their private funding to the public.
9. The Constitutional Court of Russia held that preventing HIV-positive families from adopting children who already live with them is unconstitutional.
10. The Federal Constitutional Court of Germany ruled that a prohibition of repeated fixed-term employment contracts not justified by an objective reason is constitutional.

In the News

1. High representatives of Russia, Iran and Turkey, countries acting as guarantors of the ceasefire in Syria, met with a UN special envoy to discuss the formation of the Syrian Constitutional Committee.
2. Pope Francis and the Council Cardinal Advisers finished the first draft of what will be a new apostolic Constitution outlining the role and functions of the Roman Curia.
3. The Chief Prosecutor of the International Criminal Court criticized the UN Security Council for not taking action against states that did not turn suspects in to the ICC.
4. The United States will withdraw from the UN Human Rights Council.
5. The Japanese Diet passed a legislation to lower the minimum age to vote in constitutional referendums from 20 to 18.
6. The Parliament of Hungary adopted controversial anti-immigrant legislation and a constitutional amendment: to prohibit the settlement of foreign population in Hungary; preserve the country’s constitutional identity and Christian culture; allow municipalities to ban rough sleeping; and create a Supreme Administrate Court.
7. The Senate of Canada passed a legislation to provide legal access to cannabis and to control and regulate its production, distribution and sale.

New Scholarship

1. Dean R. Knight, Vigilance and Restraint in the Common Law of Judicial Review (2018) (exploring the main shapes and forms of the modulation of the depth of scrutiny in judicial review in England, Canada, Australia and New Zealand over the last fifty years)
2. Sujit Choudry, Resisting democratic backsliding: An essay on Weimar, self-enforcing constitutions, and the Frankfurt School, 7 Global Constitutionalism 1 (2018) (examining the ability of constitutions to resist democratic backsliding based on the collapse of the Weimar Republic and historical writings of German émigré scholars after WWII)
3. Eyal Benvenisti and Georg Nolte, Community Interests Across International Law (2018) (exploring the extent to which contemporary international law expects states to take into account the interests of others, namely third states or their citizens, in their affairs)
4. Ellen Rock, Fault and Accountability in Public Law, in Mark Elliot, Jason Varuhas and Shona Wilson Stark (eds), The Unity of Public Law (2018) (examining whether public law is capable of operating as a comprehensive accountability regime)
5. Jed Odermatt, Patterns of avoidance: political questions before international courts, 14 International Journal of Law in Context 2 (2018) (discussing the techniques and types of avoidance that International Courts have used to navigate through highly political or sensitive issues)
6. Imran Ahmed, Writing Islamic Constitutions: Lessons from Pakistan, The Roundtable: The Commonwealth Journal of International Affairs (2018) (suggesting best practices for the constitutionalization of Islam and Islamic provisions)
7. Or Bassok, The European Consensus Doctrine and the ECtHR Quest for Public Confidence, in P. Kapotas & V. Tzevelekos (eds), Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond (CUP, 2018, Forthcoming) (showing based on an empirical study of the European Court of Human Rights judgments that the ECtHR views its source of legitimacy in public confidence and that the European Consensus doctrine plays a central role in maintaining this legitimation theory)

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