What’s New in Public Law

—Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest

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 Constitutional Court of Italy found parts of a presidential decree that established a minimum sentence of eight years for crimes the production, trafficking, and illicit possession of narcotic and psychotropic substances unconstitutional.
2. The Supreme Court of Uganda upheld a 2018 judgment that affirmed the constitutionality of the removal of term limits on the presidency.
3. The Supreme Court of Afghanistan extended the term of the sitting President until the delayed election takes place.
4. The Supreme Court of India constituted a committee over an affidavit filed by an advocate who claimed to have evidence of a conspiracy to implicate the sitting Chief Justice of India in a sexual harassment case.
5. The Supreme Court of India issued notice to the primary leader of the Opposition over charges that he deliberately misrepresented the nature of certain orders passed by the Court which related to corruption charges against the sitting Prime Minister.
6. The Supreme Court of the United States will hear three cases on whether Title VII, a federal law banning sex-based employment discrimination, also prohibits discrimination against gay and transgender employees.
7. The Supreme Court of the United States heard cases over whether the administration can ask all recipients a citizenship question in the 2020 census for the first time since 1950.
8. The Supreme Court of Myanmar rejected the appeal of two Reuters reporters sentenced to seven years in prison for breaking the Official Secrets Act, in a landmark case that has raised questions about the country’s transition to democracy.
9. The Supreme Court of Namibia upheld a High Court ruling, which rejected a Government request to ban the publication of a news article on national security grounds.
10. Justice Qazi Muhammad Amin Ahmad, a former judge of Lahore High Court from November 2014 to March 2019, took oath as a judge of Supreme Court of Pakistan.

In the News

1. The Disciplinary Chamber of the Supreme Court of Poland, populated exclusively by judges appointed after the controversial government reforms, ruled that the process by which they were appointed was lawful.
2. The government of Sri Lanka announced a nationwide emergency that gives police and the military extensive powers to detain and interrogate anyone without a court order.
3. The President of Guinea is planning to organize a referendum to remove the presidential term limits.
4. The President of the United States claimed that he would turn to the US Supreme Court in the event of an attempt by Congress to impeach him.
5. A former female employee of the Supreme Court of India accused Chief Justice Ranjan Gogoi of sexual harassment. An ad-hoc hearing by a bench set up by the Chief Justice was criticized for perceived attempts to discredit the complainant, which resulted in the constitution of an in-house inquiry to the matter.
6. The President of Mali announced that national consultations on constitutional reform will take place at the end of April.
7. The Parliament of Barbados passed a constitutional amendment to eliminate mandatory death penalty sentences.

New Scholarship

1. The German Law Journal published two special issues on “Public Law and Populism” and “Populist Constitutionalism” putting together articles by scholars from a wide range of disciplinary and jurisdictional backgrounds which explore the relationship between populism and the law.
2. Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (2019) (arguing that the law and lawyers selectively “code” certain assets, endowing them with the capacity to protect and produce private wealth)
3. Kate Puddister, Seeking the Court’s Advice. The Politics of the Canadian Reference Power (2019) (presenting an in-depth study of the reference power in Canada, based on a comprehensive data set of over two hundred reference cases from 1875 to 2017)
4. Tarunabh Khaitan, Killing A Constitution With a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India (2019) (arguing that executive accountability mechanisms and democratic norms have been weakened in India, enhancing political dominance of the ruling party)
5. Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (2019) (drawing on pre-Independence legal and political history to argue that the Constitution of India was intended to transform not merely the political status of Indians from subjects to citizens, but also the social relationships on which legal and political structures rested)
6. Amy Kapczynski, The Right to Medicines in an Age of Neoliberalism, 10(1) Humanity Journal (2019) (examining case law on the “right to medicines” and arguing that even socio-economic human rights may intensify inequality and reproduce neoliberal logics, if they simply overlay the existing political economy)
7. Guobin Zhu and Antonios E. Kouroutakis, The Role of the Judiciary and the Supreme Court in the Constitution-Making Process: The Case of Nepal, 55(1) Stanford Journal of International Law (2019) (examining the role of the judiciary in Nepal after the adoption of the new Constitution)
8. Ruth Rubio-Marín and Helen Irving (eds.), Women as Constitution-Makers. Case Studies from the New Democratic Era (2019) (presenting a series of comprehensive case studies of women’s campaigns for constitutional equality in nine different countries that have undergone constitutional transformations in the “participatory era”)
9. Aziz Huq, A Tactical Separation of Powers?, Constitutional Court Review (2019 forthcoming) (exploring the possibility that courts can play a role in arresting damage to constitutional democracy, through an analysis of four decisions in which the Constitutional Court of South Africa responded to a threat of stat capture)
10. John Yoo, A Defense of the Electoral College in the Time of Trump, 46(4) Pepperdine Law Review (2019 forthcoming) (cautioning against an overreaction to the 2016 election despite the failure of the Electoral College to filter out a candidate such as Trump, and arguing against the alternative of direct democracy)
11. Michael D. Gilbert and Mauricio Guim, The Active Virtues (2019) (arguing that courts exercise active virtues to attract “congruent” cases, in which law and politics align that enable the judiciary to grow stronger)
12. Jaclyn L. Neo, Arif A. Jamal, and Daniel P. S. Goh (eds.), Regulating Religion in Asia: Norms, Modes, and Challenges (2019) (examining how law regulates religion, and how religion responds to such regulation)
13. Gregory Ablavsky, Empire States: The Coming of Dual Federalism, Yale Law Journal (2019 forthcoming) (offering an alternative account of federalism’s late eighteenth-century origins, against accounts that portray federalism as a repudiation of models of unitary sovereignty)
14. Peter Karanjia, Hard Cases and Tough Choices: A Response to Professors Sunstein and Vermeule 132(5) Harvard Law Review (2019) (trying to negotiate the tension between administrative agencies’ adherence to Fullerian principles and other values including promoting agency flexibility)

Call for Papers and Announcements

1. The UCD Centre for Constitutional Studies invites submissions for its first Constitutional Work-in-Progress workshop, to be held in Dublin, on June 21-22. The deadline for submission of papers is May 8.
2. The Goethe University Frankfurt, Universidad Autónoma De Madrid, Universidad De Valencia, Università Di Ferrara, and The Max Planck Institute For European Legal History invite proposals for a workshop on “Weimar Moments: Constitutionalising Mass Democracy in Germany, Italy, Spain, And Beyond,” to be held on November 13-15, 2019, in Madrid. The deadline for paper proposals is June 1.
3. The Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law and Annals of Health Law & Life Sciences invite submissions for the Thirteenth Annual Health Law Symposium on Health Law and Policy on the theme “Addressing the Health Care Needs of Justice-Involved Populations,” to be held on November 15, 2019. The deadline for abstracts is June 15.
4. The University of New South Wales Law offers a number of positions ranging from a Post-Doctoral Fellow to Associate Professors. The deadline for applications is May 2, 2019.
5. The Melbourne Law School invites applications for the McKenzie Postdoctoral Fellowships. Expressions of interest are due by June 15, 2019.
6. The Faculty of Law, Economics and Finance of the University of Luxembourg invites applications for the position of a Doctoral researcher in law with a specialization in civil procedure.
7. The Centre for European Research in Maastricht organizes the CERiM Young Scholars’ Forum and Conference on May 22-24.
8. The Kyiv-Mohyla Law & Politics Journal invites submissions, including articles, reflections, and book reviews, for its upcoming 5th issue dedicated to the topic of “Legal and Political Challenges of Anticorruption Activities.” The deadline for submissions is May 15, 2019.
9. The Ankara Bar Association invites submissions for the XIth International Congress on Law on the theme of “Human Rights and Rights Advocacy.” The deadline for submission of abstracts is May 15, 2019.

Elsewhere Online

1. Richard Albert, Jason Kenney’s referendum threat is a bold attempt to revive Confederation, The Globe and Mail
2. Suhrith Parthasarthy, An illustrative case, The Hindu
3. Peter Penar and Carolyn Logan, Pendulum is swinging towards creeping restrictions across Africa, The Conversation
4. Laura Green and David Hamer, Corporate Responsibility for Human Rights Violations: UK Supreme Court Allows Zambian Communities to Pursue Civil Suit Against UK Domiciled Parent Company, EJIL: Talk!
5. Martin Wolf, The age of the elected despot is here, Financial Times
6. Radosveta Vassileva, Is Bulgaria’s Rule of Law about to Die under the European Commission’s Nose? The Country’s Highest-Ranking Judge Fears So, Verfassungsblog
7. David R. Cameron, Ukraine elects a comedian president, Yale MacMillan Centre
8. Gautam Bhatia, Notes from a Foreign Field: The Namibian Supreme Court on Free Speech, National Security, and Injunctions, Indian Constitutional Law and Philosophy
9. Adam Liptak, On Census Citizenship Question, Supreme Court’s Conservatives Appear United, The New York Times
10. Jan-Werner Müller, Is This Really How it Ends?, The Nation
11. Or Bassok, Frankfurter’s Conception of Judicial Legitimacy – and Ours, Balkinization
12. H. Kwasi Prempeh, Ghana Looks to Democratize its Local Government, ConstitutionNet
13. Lasse Schuldt, A Ministry of Truth in Singapore? Reflections on the Anti-Fake News Bill, Verfassungsblog
14. Jack Simson Caird, Brexit and the Politics of Law-Making, Verfassungsblog
15. Tomasz Tadeusz Koncewicz, 22 Years of Polish Constitution: Of Lessons not Learnt, Opportunities Missed, and Challenges still to be Met, Verfassungsblog
16. John Ip, Suspicionless Stop and Search Powers at the Border and Article 8: Beghal v United Kingdom, Strasbourg Observers