What’s New in Public Law

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–Vicente F. Benítez R., JSD candidate at NYU School of Law and Constitutional Law Professor at Universidad de La Sabana

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 Germany ruled that the deployment of German troops in Syria is a manifestation of the right of collective self-defense.  
2. The U.S. Supreme Court agreed to hear a challenge against the structure of the Consumer Financial Protection Bureau, as well as a petition by President Trump’s administration against a judicial decision that blocked the expedited deportation of immigrants.  
3. The Supreme Court of Brazil is set to decide whether it is necessary to exhaust all available appeals before a defendant can be imprisoned. This decision might have an impact in the prominent ‘Lava Jato’ case, as well as in former President Lula da Silva’s case.   
4. The U.S. Supreme Court vacated a lower court decision that ordered the redrawing of electoral districts in Michigan.
5. The Constitutional Court of South Africa struck down a section of the Intimidation Act that criminalized any conduct that caused someone to fear for their own safety or the safety of their property or livelihood. The Court concluded that this provision infringed freedom of expression. 

In the News

1. The High Court of the Hong Kong Special Administrative Region dismissed a claim challenging the constitutionality of the nonrecognition of same-sex marriage.
2. The Court of Session in Scotland delayed a decision on whether PM Boris Johnson has complied with the law requiring him to seek a Brexit extension.
3. The Parliament of the UK rejected PM Johnson’s timetable to discuss the legislation needed to implement the Brexit deal.
4. In Thailand, the leader of the opposition Future Forward Party, Thanathorn Juangroongruangkit, apologized to PM Thaksin Shinawatra for his declaration before the Constitutional Court on the PM’s ‘conflicts of interest’. 
5. The President of Zimbabwe, Emmerson Mnangagwa, rejected a proposal to suspend elections for seven years, proposal tabled by the Zimbabwe Heads of Christian Denominations.  
6. Thousands of people have taken to the streets in Lebanon to protest against the political elites and the economic difficulties the country is facing.
7. The President of Chile, Sebastián Piñera, declared a state of emergency and deployed troops onto the streets amidst demonstrations held against his government. 
8. The President of the Government of Catalonia, Quim Torra, called for negotiations with the central government of Spain after more than five nights of civil unrest.
9. The Government of Colombia requested an Advisory Opinion to the Inter-American Court of Human Rights on whether the prohibition of presidential re-election constitutes a human rights breach.   
10. In Armenia, the ruling My Step Party seeks to remove the President of the Constitutional Court, Hrayr Tovmasyan, from his post.  
11. The Green Party of Switzerland made significant gains in the Parliamentary elections held on October 20.
12. The PM of Israel, Benjamin Netanyahu, informed President Reuven Rivlin that he was not able to form a new government.
13. In Northern Ireland, the law prohibiting abortion was repealed, while same-sex marriage was legalized.   
14. The Electoral Commission of Ghana set December 17, 2019, as the date to hold a referendum aimed at amending the Constitution to permit political parties to fund their candidates’ campaigns.
15. The Secretary for Security of Hong Kong, John Lee, stated that the government will withdraw the bill that expanded Hong Kong’s extradition laws.
16. The President of Ukraine, Volodymyr Zelensky, urged lawmakers to take a lie detector test in the wake of a corruption scandal that has shaken the country. 
17. In the midst of allegations of fraud, the President of Bolivia, Evo Morales, claimed an outright victory in the first-round presidential election, thus discarding a run-off.
18. In Canada, PM Justin Trudeau will remain in power as the leader of a minority government, given that the Liberal Party could not manage to secure an absolute majority in the House of Commons.
19. The President of Russia, Vladimir Putin, met with his Turkish counterpart Recep Tayyip Erdogan to discuss a plan on how to control the territory previously held by Kurdish and American forces in Syria.
20. The State Counselor of Myanmar, Daw Aung San Suu Kyi, declared that the ‘military are not overly enthusiastic’ about the amendments required to complete the transition to democracy.
21. The PM of Vietnam, Nguyễn Xuân Phúc, announced before the National Assembly that the country will not make any concessions on its territorial independence and sovereignty with regard to East Sea.
22. The Senate of Brazil approved a far-reaching pension reform that seeks to save the Treasury around USD 195 billion during the next decade.
23. In Spain, the remains of dictator General Francisco Franco were exhumed from the Valley of the Fallen mausoleum, after the country’s Supreme Court upheld a government’s decision to do so.  

New Scholarship

1. Andrew Novak, Transnational Human Rights Litigation: Challenging the Death Penalty and Criminalization of Homosexuality in the Commonwealth (2019) (analyzing the role of strategic human rights litigation in the dissemination and migration of transnational constitutional norms and providing an analysis of how transnational human rights advocates and their local partners have used international and foreign law to promote abolition of the death penalty and decriminalization of homosexuality)
2. Yonique Campbell, Citizenship on the Margins. State Power, Security and Precariousness in 21st-Century Jamaica (2020) (critically exploring the impact of national security, violence and state power on citizenship rights and experiences in Latin America and the Caribbean, and arguing that dominant responses to security have wider implications for citizenship)
3. Nicolas Carrillo-Santarelli & Carolina Olarte-Bácares, From Swords to Words: the Intersection of Geopolitics and Law, and the Subtle Expansion of International Law in the Consolidation of the Independence of the Latin American Republics, Journal of the History of International Law (2019) (examining several factors that indicate that pragmatism, motivated by political and economic reasons, was the defining element that persuaded different European powers to grant recognition to the nascent Latin American States in a historical era in which such recognition was essential for statehood)
4. Lydia Brashear Tiede, Mixed Judicial Selection and Constitutional Review, Comparative Political Studies (2019) (after examining the vote choice on the Chilean and Colombian constitutional courts, the article suggests that judges’ decisions to strike down laws are explained more by their and other colleagues’ institutional selector than their political party associations)
5. Sébastien Van Drooghenbroeck & Cecilia Rizcallah, The ECHR and the Essence of Fundamental Rights: Searching for Sugar in Hot Milk? German Law Journal (2019) (sketching out the different functions assigned to the concepts of the essence, substance, and core of rights in the ECtHR’s case law, and suggesting that these concepts are invoked for three different types of purposes: to fix ‘limits on the limits’, expand the Convention’s sphere of protection and review the intensity of States’ obligations)
6. Jorge Ernesto Roa-Roa, Control de constitucionalidad deliberativo. El ciudadano ante la justicia constitucional, la acción pública de inconstitucionalidad y la legitimidad democrática del control judicial al legislador (Deliberative Judicial Review. The citizenry before the constitutional jurisdiction, the public action of unconstitutionality, and the democratic legitimacy of a judicial oversight on the legislature) (2019) (providing a critical analysis, from a deliberative perspective, of the Colombian public action to declare the unconstitutionality of laws, and arguing that the ample avenues granted to the citizenry to access the Constitutional Court enhance the democratic credentials of judicial review of legislation in Colombia)   
7. Dina Lupin Townsend, Silencing, consultation and indigenous descriptions of the world, Journal of Human Rights and the Environment (2019) (arguing that the Inter-American Court and Commission of Human Rights have interpreted indigenous testimony about the environment as being claims about the cultural impacts of disputed activities or plans, and not as claims about the environmental impacts)
8. Alex Schwartz, An Agent-Based Model of Judicial Power, Journal of Law (6 J. Legal Metrics) (2019) (exploring how new constitutional or supreme courts can act strategically to build their power while mitigating the risk of retaliation by the political branches, and suggesting that a court that avoids challenging the preferred policies of the political branches in high salience disputes will tend to exert more influence on constitutional law than a court that moves to establish its power early on in landmark cases)
9. David Landau & Hanna Lerner (eds.), Comparative Constitution Making (2019) (providing an up-to-date overview of the rapidly expanding field of comparative constitution-making, presenting original, innovative research on central issues related to the process and context of constitution-making, and identifying distinctive elements or models of regional constitutionalism)
10. Adrienne Stone, Proportionality and Its Alternatives, U of Melbourne Legal Studies Research Paper No. 848 (Forthcoming – 2019) (considering two possible understandings of proportionality in Australian Constitutional Law, and claiming that a third approach –namely Justice Gageler’s ‘calibrated scrutiny’– has the potential to provide a greater measure of clarity and predictability without sacrificing all of the benefits of proportionality)
11. Shane Chalmers, The Mythology of International Rule-of-Law Promotion, Law & Social Inquiry (2019) (showing how the mythology of modern law endures in the field of rule-of-law development and how it, in its racialized imperial form, is integral to the work of international rule-of-law promotion)
12. Maria C. Escobar-Lemmon, Valerie Hoekstra, Alice J. Kang & Miki Caul Kittilson, Appointing women to high courts, in Susan M. Sterett & Lee D. Walker (eds.), Research Handbook on Law and Courts (2019) (examining the burgeoning literature on women’s appointments in the judicial branch, and considering studies that focus on the role of institutions in advancing or hindering women’s judicial representation as well as studies that have emphasized supply-side explanations, that is, explanations that highlight the importance of the supply of qualified women)

Calls for Papers and Announcements

1. The Government and Laws Committee, Politics and Public Administration Association SSS HKUSU –with the support from the BSocSc (Govt&Laws) & LLB Programme at The University of Hong Kong– is pleased to announce the publication of the Inaugural Volume of The Hong Kong Journal of Law and Public Affairs. This first volume focuses on “Confucian Democracy and Constitutionalism.”
2. The Legal Philosophy Workshop calls for papers for the upcoming 7th annual Legal Philosophy Workshop 2020 to be held at the University of Southern California in Los Angeles on June 25-26, 2020. The deadline for submissions is January 6, 2020.  
3. The British Institute of International and Comparative Law invites interested scholars to apply for a Research Fellow position in Judicial Independence and Constitutional Transitions. Applications should be submitted by November 3, 2019.
4. The Forum for Law and Social Science at the Faculty of Law of the University of Oslo will host the 3rd Conference on Empirical Legal Studies in Europe (CELSE) on June 11-12, 2020, and welcomes submissions of unpublished papers on the areas of interest of the Conference. Proposals must be sent by February 15, 2020.   
5. PluriCourts invites submissions for its forthcoming workshop on “The Political and Legal Theory of International Courts and Tribunals 2020: Independence, accountability, and domination in International Courts.” The deadline for submission of proposals is December 1, 2019.
6. The department of Law at the London School of Economics (LSE) seeks an Assistant Professor in Law (Technology Law and Regulation). Applications should be submitted no later than November 18, 2019.
7. Lancaster University invites submissions for its forthcoming University Law Conference on the theme “Law and Justice.” Proposals are due by December 13, 2019.     

Elsewhere Online

1. Gautam Bhatia, The 16th September Order and the Supreme Court of Convenience (or why separation of powers is like love), Indian Constitutional Law and Philosophy
2. Victoria Clement, Passing the baton in Turkmenistan, Atlantic Council
3. Katrina Forrester, The Future of Political Philosophy, Boston Review
4. Joelle Grogan, Fools Rush Out. On the Withdrawal Agreement and EU (WA) Bill, Verfassungsblog
5. Lénárd Sándor interviewed Professor Robert P. George who spoke about natural law and natural rights, “A false claim of a human right is a claim that fails the test of natural law” – conversation with Robert P. George, Precedens.Mandiner
6. Swee Leng Harris, Law-making in the UK post-exit, who gets to call the shots? The UK in a Changing Europe
7. Ailsa Henderson, No passion please, we’re Canadian: the 2019 federal election and a divided electorate, Centre on Constitutional Change
8. Louise Cockram, From candidate to elected member: will new MPs face a trial by fire after the 2019 Canadian federal election? The Constitution Unit
9. Marcin Matczak, The Polish Senate under Opposition Control, Verfassungsblog
10. Nicolás Carrillo-Santarelli, The Strategic Use of Advisory Opinion Requests in Colombian-Venezuela Bilateral Relations, OpinioJuris
11. Ken Lohatepanont, Building broad support for constitutional reform, Bangkok Post
12. Teresa Violante, Between Legislative Defiance and Legal Security. How Portugal’s Constitutional Court Refused to Re-Open the Debate on Surrogacy, Verfassungsblog
13. Santanu Paul interviewed Professor Tom Ginsburg who addressed several questions on the survival of constitutional democracies, Interview with Professor Tom Ginsburg, Leo Spitz Professor of International Law and Political Science in the University of Chicago, The Economic Times Blogs  
14. Anna Heslop & Soledad Gallego, Court highlights strict rules in milestone ruling for wildlife protection C-674/17, European Law Blog
15. Maria Ela L. Atienza, From ‘Big Bang’ to Incremental Changes to the 1987 Philippine Constitution, ConstitutionNet
16. Adil Ahmad Haque, Turkey, Aggression, and the Right to Life Under the ECHR, EJIL: Talk!
17. Erika Arban & Antonia Baraggia, Guest Editors’ Introduction: IACL’s New Research Group on New Frontiers of Federalism, IACL-AIDC Blog
18. Thomas Gift, Will Democrats win the politics of impeachment? It depends on their strategy, LSE USCentre