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 High Court of Australia held that Aboriginal Australians who are born overseas and are not citizens of Australia are nevertheless not within reach of the “aliens” power in section 51(xix) of the Australian Constitution.
2. The High Court of Kenya halted a controversial biometric ID scheme until new data protection laws are enacted.
3. The Supreme Court of India delivered an important decision on the use of affirmative action in promotions in public posts.
4. The European Court of Human Rights held that indefinite retention of DNA profile, fingerprints and photograph of a person convicted for a minor offence was disproportionate and violated the right to respect for private life under Article 8 of the Convention.
5. The Supreme Court of India issued mandatory directions to political parties to publish criminal antecedents of their candidates.

In the News

1. Military-appointed lawmakers in Myanmar opposed a proposal by the parliamentary Joint Bill Committee to merge the military’s constitutional amendment bills with those submitted by the National League for Democracy (NLD) for discussion by Parliament.
2. The Public Protector of South Africa stated that adverse court findings against her could not form the basis of a parliamentary inquiry, which could result in her removal from office.
3. Bosnian Serb officials have been accused of breaking the law after they stopped work on deciding any state-level matters, pending adoption of a new law on the Constitutional Court.
4. The Independent National Electoral Commission in Nigeria in the exercise of its power granted by Section 225(a) of the 1999 Constitution, deregistered 74 political parties that failed to meet the requirements for listing on its register, in the wake of the last year’s elections and the recent rerun.
5. An indigenous community opposing the construction of a gas pipeline in Canada launched a legal challenge at the Supreme Court over the climate impact of fossil fuel projects on indigenous territories.
6. Geoffrey Cox, the UK government’s attorney-general threw his weight behind calls to curb judges’ powers to overturn ministerial decisions, saying there is a “widespread feeling” courts are making decisions that “properly ought” to be parliament’s.
7. The District Court of the Hague in The Netherlands ordered the immediate halt to a digital benefit fraud detection tool targeted at poor neighborhoods in the Netherlands because it violated human rights norms, giving credence to a report filed by  Philip Alston the UN Special Rapporteur on extreme poverty and human rights.
8. A judge in South Africa issued an arrest warrant for former president Jacob Zuma for failing to appear in court on a corruption case that he has sought to avoid for months.
9. The President of Guinea announced that he would go ahead with a contested plan to revise the West African country’s constitution next month, a move that threatened to inflame political tensions after a series of deadly demonstrations further.

New Scholarship

1. Stephen M. Griffin, Against Historical Practice: Facing Up to the Challenge of Informal Constitutional Change 35 Constitutional Commentary (2020) (developing an approach to “constitutional change as state-building” to resolve contentious disputes over war powers and judicial nominations in the Obama and Trump administrations as well as recent Supreme Court cases).
2. Alexandra Sinclair and Joe Tomlinson, RR v Secretary of State for Work and Pensions: Empowering Tribunals to Enforce the Human Rights Act 1998, Modern Law Review, forthcoming 2020 (analyzing the human rights implications of the judgment in RR v Secretary of State for Work and Pensions which also has significant implications for social security law).
3. Katherine Shaw, Reva Siegel and Melissa Murray, Introduction to Reproductive Rights and Justice Stories in Reproductive Rights and Justice Stories, forthcoming 2020 (providing an overview of the stories about the individual litigants and lawyers behind important cases in reproductive rights which recognize courts as but one of many institutions in constitutional democracy).
4. Jack M. Balkin, How to Regulate (and Not Regulate) Social Media Yale Law School, Public Law & Legal Theory Research Paper Series (2020) (describing three policy levers that might create better incentives for privately-owned companies to subject themselves to greater regulation: (1) antitrust and competition law; (2) privacy and consumer protection law; and (3) a careful balance of intermediary liability and intermediary immunity rules).
5. Jordi Jaria-Manzano and Susana Borrás (eds.), Research Handbook on Global Climate Constitutionalism (2020) (exploring how to develop constitutional discourses and strategies to address issues of sustainability and global equity, and thereby tackle the negative effects of climate change whilst also advancing a more sustainable, equitable and responsible global society).
6. Kajit J Bagu (John Paul), Peacebuilding, Constitutionalism and the Global South: The Case for Cognitive Justice Plurinationalism (2019) (demonstrating the failure of liberal constitutionalism in guaranteeing peace in the postcolonial global South and developing an alternative, more compelling constitutionalism for peacebuilding in conflicted regions which could deliver peace by addressing historic, conceptual, legal, institutional and structural issues that have created social inequality and injustice).
7. Alexandre de le Court, Sufficiency principle and minimum social security benefits: an analysis from the perspective of the German right to a minimum of subsistence, 32(2) Rev. derecho (Valdivia) (2019) (analyzing the recent case concerning social minimum in Germany from a comparative perspective).
8. Brian Christopher Jones, Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness (forthcoming 2020) (arguing that written constitutions have been drastically and persistently over-sold throughout the years and that their wider importance and effects are not nearly as significant as advocates maintain). 
9. Toomas Kotkas, Ingrid Leijten, and Frans Pennings (eds.), Specifying and Securing a Social Minimum in the Battle Against Poverty (2019) (bringing together a wide variety of perspectives on the legal and academic dimensions of a social minimum and its expression in law and policy across jurisdictions).
10. Neville Hoad, “I Don’t Want to Live in a World Where People Die Every Day Simply Because They Are Poor”: From the Treatment Action Campaign to Equal Education, from Stories of Human Rights to the Poetics of Inequality, Humanity: An International Journal of Human Rights, Humanitarianism, and Development (2019) (exploring the rhetorical and genre differences between human rights arguments and inequality arguments, speculating that the former privileges narrative as a dominant mode of representation and that the latter frequently require a poetics—paradoxically the poetics of numbers).
11. Padraic Kenna  Héctor Simón‐Moreno, Towards a common standard of protection of the right to housing in Europe through the charter of fundamental rights, 25(6) European Law Journal (2019) (on developing common standards of housing using housing financialization and mortgage directives and examining the practice of the ECJ). 

Call for Papers and Announcements

1. The Law & Human Rights Centre at the University of Essex holds a Speaker Series event on 19 February featuring Sylvian Aubry (The Global Initiative for Economic, Social and Cultural Rights), Prof. Aoife Nolan, (University of Nottingham), and Dr. Koldo Casla (University of Essex).
2. A limited number of doctoral scholarships are available as part of a new ERC-funded project based in the Sutherland School of Law, University College Dublin. The successful candidates will have the opportunity to participate in a comparative research project investigating how constitutional systems are responding to the challenges of populism and declining public trust. The project is led by Professor Eoin Carolan, who will act as supervisor to the successful candidates.
3. The Graduate Law Students Association of McGill University’s Faculty of Law announced the 13th Annual McGill Graduate Law Conference on May 7-8 2020 in Montreal, Canada. This year’s theme is “’Law Actually’: Intimacy and Trust”.
4. The University of Amsterdam invites applications for the position of an Assistant Professor in Sustainable Global Economic Law. The deadline for applications is April 15 2020.
5. Ghent University, Belgium invites submissions to an International Conference on ‘The European Convention on Human Rights turns 70: Taking Stock, Thinking Forward’ on 18-20 November 2020.
6. World Comparative Law/VRÜ invites submissions to a forthcoming special issue on ‘Corrupting Democracy? Interrogating the Role of Law in the Fight against Corruption and its Impact on (Democratic) Politics’.
7. The European University Institute invites applications to its summer school on `Human Rights and Conflict Resolution’ and a `General Course on ‘Reimagining Law, Human Rights and War’. The deadline for applications is 15 April 2020.

Elsewhere Online

1. Katharine Young, Trumping Human Rights in the United States? The Commission on Unalienable Rights, Oxford Human Rights Hub
2. Kate Galloway and Melissa Castan, High Court rules Indigenous people cannot be deported as aliens, but the fight for legal recognition remains, The Conversation
3. Lewis Graham, Human Rights in the Supreme Court in 2020, UK Human Rights Blog
4. Walter Khobe Ochieng, Comparing the Superior Courts, Nairobi Law Monthly
5. Carlos Oviedo Moreno, A Painful Slap from the ECtHR and an Urgent Opportunity for Spain, Verfassungsblog
6. Linda Greenhouse, The Supreme Court in the Mean Season, New York Times
7. Faranaaz Veriava and Sasha Stevenson, It’s time to rethink our strategies for securing socio-economic justice, Daily Maverick