What’s New in Public Law

[Editor’s Note: Republished with a correction: our description of the Federal Constitutional Court of Germany’s action on the rent-control law was not quite clear. To confirm, the FCC has not yet rendered a decision on the constitutionality of the law. We are grateful to our readers for bringing our attention to this point. We have also added a new paper co-authored by an editor of the Blog, with an invitation for comments.]

—Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

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 United States Supreme Court will hear a challenge to Republican-drawn electoral maps in Wisconsin.
2. The Supreme Court of Iraq ordered the suspension of a referendum on the independence of Iraqi Kurdistan, to examine whether such a poll would be constitutional.
3. The Constitutional Court of Guatemala suspended a legislation that would replace prison sentences for illegal campaign financing with fines.
4. The Constitutional Court of Spain has imposed daily fines of up to 12,000 EUR on Catalan officials for every day they continue organizing a banned referendum.
5. The Constitutional Court of Thailand might face a “reset” as some of is sitting judges do not meet the stricter qualification requirements for office under the new Constitution.
6. The Constitutional Court of Czech Republic found that a Turkish citizen has been wrongfully detain while waiting for his possible extradition to Turkey for more than three years.

In the News

1. The Arizona Supreme Court awarded same-sex couples full parental rights.
2. Lawmakers from Bolivia’s governing Movement Towards Socialism party requested the Constitutional Court to allow President Evo Morales to run for a fourth term.
3. The European Commission called all parties in Catalonia to respect the Constitution.
4. A parliamentary panel in Togo approved a controversial bill to introduce presidential term limits to the Constitution.
5. Irish lawmakers begin drafting a bill to amend the Eighth Amendment on abortion.
6. The President of Zimbabwe has been accused of tampering with the 2013 Constitution.
7. In Italy, a new law makes torture a crime.

New Paper–Comments Welcome

Farrah Ahmed, Richard Albert, and Adam Perry, Judging Constitutional Conventions (working paper) (2017)

Abstract: The study of constitutional conventions is anchored in an assumption that has so far remained unchallenged: Commonwealth courts will recognize and employ conventions but never enforce them. We show in this Article that the dominant view today is doubly mistaken: there is no such shared “Commonwealth approach” to the treatment of constitutional conventions nor do Commonwealth courts refrain from enforcing conventions. Drawing from Canada, India and the United Kingdom, we disrupt the foundations of the scholarly understanding of conventions by demonstrating that Commonwealth courts have recognized, employed and indeed also enforced conventions. Beyond this new discovery, we make the normative claim that Commonwealth courts sometimes should enforce conventions, an additional contrast between the dominant view and ours. We argue that courts should act as executors of the will and judgment of constitutional actors, and limit themselves to enforcing only power-shifting conventions, which transfer power from those who have legal power to those who can legitimately wield it. This new role of an executor court brings clarity, stability and predictability to the exercise of official powers that are rooted in constitutional convention rather than constitutional law.

New Scholarship

1. Erdem Büyüksagis, The Role of Comparative Law: New International Model Rules vs. Time-Tested Local Practices, 42 North Carolina Journal of International Law and Commercial Regulation (2017) (discussing the role of courts and comparative law in the promulgation of the Swiss Civil Code in Turkey)
2. Carlos García-Soto, Estudios Sobre La Asamblea Nacional Constituyente (2017) (analyzing the National Constituent Assembly in Venezuela)
3. Amir Seyedfarshi, Public Policy Exception in Enforcement of Foreign Judgments, Setting Aside an Award in the Country of the Seat of Arbitration, XVI Pepperdine Dispute Resolution Law Journal (2015) (discussing the enforcement of foreign judgments by the US courts)
4. Sherally K. Munshi, Comparative Law and Decolonizing Critique (2017) (seeking to reanimate comparative legal scholarship by reorienting it towards decolonizing critique)

Special Announcements

1. The new issue of the European Journal of Legal Studies has just been published.
2. On Friday October 6, 2017 the inaugural conference of the second edition of the Erasmus+ Joint Master in Parliamentary Procedures and Legislative Drafting (EUPADRA: www.eupadra.eu), co-organised by LUISS Guido Carli of Rome, Universidad Complutense of Madrid and the University of London, will take place at the Chamber of Deputies. The first inaugural conference was held in 2017 on “The Transformation of Parliamentary Organisation by Technology Innovation”. This year, the conference will focus on “The Transformation of Parliamentary Procedures by Technology Innovation”. Next year, the third conference will focus on “The Transformation of Legislative Output by Technology Innovation”. More details are available here.

Call for Papers

1. The University of Zaragoza, University Loyola Andalucia, and Club Español del Arbitraje invites submission for a conference on “60 Years of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Key Issues and Future Challenges,” to be held on April 5-6, 2018. The deadline for submissions is November 30,  2017.
2. The Central European Forum on Law and Administration invites submissions for a conference on “Judicial Protection of Individual Rights in Central European Countries − Current Experience and Trends,” to be held on October 10-11, 2017, at Faculty of Law and Administration University of Opole.
3. The Institute for Comparative Federalism of Eurac Research, the Faculty of Law, and the School of Political Science and Sociology of the University of Innsbruck invite applications for the 2018 Winter School on Federalism and Governance. The next edition of the Winter School will take place from 5-16 February 2018 and will focus on federalism in the making.
4. The Private International Law Group from the School of Law of Carlos III University of Madrid invites submissions for the International Congress on matters of matrimonial property regimes and property consequences of registered partnerships, which will be held from November 16-17, 2017.
5. The Swiss Political Science Association (SPSA) invites submissions for its annual conference on “International Migration Governance: Chances and Limits,” to be held February 5-6, 2018 at the University of Geneva.
6. The Italian Law Journal invites submission for Volume 3, Issue 2 (2017) of the journal, to be published in December 2017. The submissions will be accepted until mid-November.

Elsewhere on Blogs

1. Julie R. Colton, Determining a Wedding Date: Retroactive Recognition of Same-Sex Common Law Marriages post-Obergefell, JURIST
2. Michael Rebell, Litigating for the Right to Education in the United States: Part 1 / Part 2, OxHRH
3. Akinola Akintayo, Kidnappings in Nigeria as a class act: Implications for the criminal justice system, AfricLaw
4. Sulaiman Kakaire, Uganda: Understanding Politics Behind Constitutional Court Decisions, allAfrica
5. Gaaki Kigambo, Uganda: Echoes of 1966 As Guns Return to Parliament Over Constitution, allAfrica
6. James Fishkin and Gombojav Zandanshatar, Deliberative Polling for Constitutional Change in Mongolia: An Unprecedented Experiment, ConstitutionNet
7. Máiréad Enright, Replace v Repeal and the Politics of Legal Certainty, Human Rights in Ireland
8. Mark Elliott, Q: What does the Space Industry Bill have to do with the separation of powers? A: More than you’d think, Public Law for Everyone
9. Adam Perry, What’s so great about flexible policies?, Admin Law Blog
10. David Tan, Section 44, Interpretation and Changing the Law, AUSPUBLAW
11. Dan Harris, China Manufacturing: To Broker or not to Broker, That is the Question, China Law Blog
12. Gautam Bhatia, The Indian Supreme Court’s Right to Privacy Judgment, Blog of the IACL, AIDC
13. Isaam Bin Haris, The ‘Continuing Mandamus’, Institutional Failure and Judicial Independence – Pakistan’s Three-Pronged Conundrum, UK Constitutional Law Association