What’s New in Public Law

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—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 European Court of Human Rights issued notice to the government of Poland on the basis of a complaint brought by an applicant company about the appointment of one judge in particular to the Constitutional Court which examined its case, and is now the second application to be communicated to the Government of Poland raising an issue related to changes in the judiciary. Communication available here.
2. The Jammu and Kashmir People’s Conference filed a plea, one of many brought by political parties from the region, in the Supreme Court of India challenging the constitutionality of the Union Government’s abrogation of provisions in the Indian Constitution which guaranteed Jammu and Kashmir autonomy.
3. The Supreme Court of the United States ruled that the Trump administration may enforce new rules that generally forbid asylum applications from migrants who have traveled through another country on their way to the United States without being denied asylum in that country. Order available here.
4. The First Division, Inner House, Court of Session of Scotland ruled that UK Prime Minister Boris Johnson’s prorogation of Parliament was unlawful. Judgment here.
5. South African President Cyril Ramaphosa has made Zukisa Tshiqi and Steven Majiedt his first appointments to the Constitutional Court of South Africa.
6. The High Court of Kenya ruled that a high school in Nairobi had violated the petitioner’s constitutional right to freedom of religion by asking her to shave her dreadlocks, which she claimed was required by her Rastafarian faith.
7. The Constitutional Court of Zambia adjourned the hearing of an application by the Law Association of Zambia for an injunction to prevent Parliament from proceeding to receive submissions and debate a set of controversial amendments to the Constitution. 
8. The Supreme Court of India agreed to hear public interest litigation seeking directions to set up community kitchens in order to address reports of increasing deaths across the country on account of malnutrition.

In the News

1. The Equality Court of South Africa held that the gratuitous display of the country’s apartheid era flag constitutes, inter alia, ‘hate speech’ and ‘harassment’ as understood in the provisions of the Equality Act, 2000. Judgment here.
2. The Advocate General advised the Supreme Court of the Netherlands to uphold the Hague Court of Appeal’s 2015 decision in the Urgenda case where it concluded that by failing to reduce greenhouse gas emissions by at least 25% by end-2020, the Dutch government had acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the ECHR. Commentary on the 2015 case can be found here.
3. The High Court of Belfast dismissed claims that a no-deal Brexit and the imposition of a hard border would damage the Northern Ireland peace process.
4. A judge of the Quebec Superior Court struck down a clause that required patients’ natural deaths to be “reasonably foreseeable” in a federal assisted-dying law the as unconstitutional.
5. The Lower House in Myanmar rejected a motion to sign the International Covenant on Civil and Political Rights (ICCPR) arguing that it might endanger national security.
6. The Parliament of Ukraine passed legislation that allows a sitting president to be impeached if they break the law.
7. The government in Zambia is set to go ahead with a set of changes to the constitution which, among others, could remove parliament’s oversight over debt.

New Scholarship

1. Ciara Fitzpatrick, Gráinne McKeever &Mark Simpson, Conditionality, discretion and TH Marshall’s ‘right to welfare’ 42(2) Journal of Social Welfare and Family Law 1 (2019) (using empirical findings to illustrate the lack of fulfilment of social rights in the UK).
2. Tarunabh Khaitan, Political insurance for the (relative) poor: How liberal constitutionalism could resist plutocracy, Global Constitutionalism (2019) (sketching the salience of gross economic inequality to modern constitutional and political theory and suggesting a set of legal and political constitutional measures to address it.)
3. Stephan Stohler, Reconstructing Rights: Courts, Parties, and Equality Rights in India, South Africa, and the United States (2019) (drawing on legislative debates, legal briefs, and judicial opinions from High Courts in India, South Africa, and the United States to develop a theory of the judicial role in equality cases).
4. Dragoljub Popovic, Comparative Government (2019) (providing a comparative study of decision-making mechanisms and lines of evolution, as well as parliamentary, presidential, semi-presidential, power sharing and supra-national level forms of government).
5. Massimo La Torre, Leone Niglia, and Mart Susi (eds.), The Quest for Rights: Ideal and Normative Dimensions (2019) (bringing together a group of scholars explore the salience of the work of Robert Alexy in areas like the use of proportionality in conflicts of rights and the normativity of human rights).
6. Maria Mousmouti, Designing Effective Legislation (2019) (advancing the idea that legislative effectiveness is the result of complex ‘mechanics’ in the conceptualization, design and drafting of four elements inherent in every law: purpose, content, context and result).
7. W. Gregory Voss, Obstacles to Transatlantic Harmonization of Data Privacy Law in Context, 2 Journal of Law, Technology and Policy (2019) (discussing the challenges in the creation of a harmonized data privacy law in the United States and Europe).
8. Alin Fumurescu, Compromise and the American Founding: The Quest for the People’s Two Bodies (2019) (discussing the analytic categories of the ‘people’ and ‘compromise’ as understood in seventeenth-century England and France, and providing an account of their salience during key moments of the founding of the United States.)
9. Roberto Gargarella, Review of Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy, 44 Revista Derecho del Estado (2019) (reviewing and providing critical analysis of the volume by Ginsburg and Huq).
10. Maxime St-Hilaire et Joanna Baron, Introductory Essay: The Rule of Law as the Rule of Artificial Reason, 92 Supreme Court Law Review (2019) (reviews several theories of the rule of law, and drawing attention to the role of the legal profession, particularly judges, in sustaining the values of legality and the rule of law)

Call for Papers and Announcements

1. The Rehnquist Center at the University of Arizona invites abstracts the third annual National Conference of Constitutional Law Scholars on March 20-21, 2020 by emailing 1- or 2-page abstracts to Andrew Coan (acoan@email.arizona.edu) by 1 October 2019.
2. Democracy Reporting International invites scholars in the field of the rule of law in the EU to contribute to its pool of experts who can contribute to research and drafting analytical pieces on rule of law-related issues in EU members states.
3. The Hungarian Helsinki Committee released a report on the deteriorating rule of law situation in Hungary, with a focus on areas like the undermining of the independence of the judiciary and curbing of media freedoms.
4. The Faculty of Law McGill University invites applications for the 2020 O’Brien Graduate Fellowships.
5. The Ludwig-Maximilians-Universitat in Muenchen invites applications for 15 LMU Research Fellowships for outstanding early career researchers.
6. The Centre for International Law at the National University of Singapore invites applications for a Research Associate to join its International Dispute and Resolution Programme.
7. The International Center for Law and Religion Studies at the Brigham Young Law School invites abstracts for a project (culminating in a workshop) titled Human Dignity and Human Rights – Christian Perspectives and Practices: A Focus on Constitutional and International Law.

Elsewhere Online

1. Tarunabh Khaitan, On Coups, Constitutional Shamelessness, and Lingchi, UK Constitutional Law Blog
2. Aziz Huq, Judicial Norms and Judicial Capacity, Balkinization
3. Nic Cheeseman, Lungu erodes Zambia’s democracy, Mail & Guardian
4. Timothy Endicott, Don’t Panic, UK Constitutional Law Blog
5. V. Venkatesan, Petitions challenging abrogation of Article 370: Apex court on test, Frontline
6. James C. Hathaway, Acquiescing in Refoulement, Verfassungsblog
7. Paul Craig, Prorogation: Three Assumptions, Oxford Human Rights Hub Blog
8. Alan Greene, Miller 2, Non-justiciability and the Danger of Legal Black Holes, UK Constitutional Law Blog
9. Corey Robin, Clarence Thomas’s Radical Vision of Race, The New Yorker
10. Gautam Bhatia, The Absentee Constitutional Court, The Hindu
11. Ibrahim AL-bakri Nyei, Liberia’s long-awaited constitutional referendum: Debate on alternatives to by-elections, ConstitutionNet
12. Cem Tecimer, Recognizing Court-Packing, Verfassungsblog
13. Franny Rabkin, Why Justice Stevan Majiedt aspires to be like Pius Langa, Mail & Guardian
14. Kriszta Kovács and Gábor Attila Tóth, The Age of Constitutional Barbarism, Verfassungsblog
15. Simona Florescu, The importance of time in child protection decisions; a commentary on Haddad v Spain, Strasbourg Observers
16. Garrett Epps, The Supreme Court Is Not Well. And the People Know It, The Atlantic
17. Robert Hazell and Nabila Roukhamieh-Mckinna, In defence of the Fixed-term Parliaments Act, The Constitution Unit
18. David R. Cameron, After passage of Benn bill and Johnson’s sixth defeat, House of Commons is prorogued, Yale MacMillan Centre
19. Han-Ru Zhou, Ford and Irwin Toy 30 Years Later: A Conversation with Justice de Montigny, Constitutional Forum