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Blog of the International Journal of Constitutional Law

Is Polarization Necessarily Bad? Lessons from Latin America

Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

Polarization is what several political scientists and constitutional scholars have pointed out as possibly the most troubling sign of democratic backsliding. Zachary Elkins, for example, says that “[he] might view divided publics as the single most important factor that threatens and undermine democracy at least in modern presidential systems.”[1] Among the various factors leading to democratic crises, Elkins suggests that “the comparative study of polarization may be the key to understanding the health of democracy more generally.”[2] In environments of high social inequality, polarization tends to be more explosive still, as it helps exacerbate the divide among distinct social groups and affect the capacity of institutions to work as coordination devices, which then fail to deliver incentives for empowering individuals to defend their rights.[3] Moreover, it provides a sense of belonging, while, as King and Smith put it, “[fostering] a very real sense that government is in the hands of elites who care only for themselves, not ‘the people.’”[4] The strategies of would-be autocrats of the current times directly target polarization as a fundamental mechanism of coordination. Polarization turns into a psychological weapon for mutual engagement. But is polarization necessarily bad? The devil might be in the details and in how the political system organizes itself under an environment of polarization.

A phenomenon that is well discussed in the literature is how party systems have been weakened in the face of radicalization through polarization. The movements towards consensus and compromises that are expected of political systems are highly disrupted when those parties are pushed to extremes, if not beaten by new parties that assume such a strategy as their platform. This is what Kim Lane Scheppele, in her the provoking and fascinating paper The Party’s Over, diagnoses in the United States and United Kingdom[5] as well as in multiparty systems in Europe: “in the multiparty systems of France, Austria, Germany, the Netherlands, and Italy, which have all gone through elections in 2017 and 2018, the weakness of the party system can be seen in the decline of traditional parties and the rise of extremist parties of both Left and Right.”[6] Other cases where the “party system was in shambles,”[7] like in Venezuela and Hungary, illustrate how polarization may turn out really bad for democracy.[8]

Read the rest of this entry…
Published on Best Naturals Vitamin b6 200mg for Adults, 120 Tablets
Author:          Filed under: Analysis
 

What’s New in Public Law


Chiara Graziani, Research Fellow in Comparative Public Law, University of Milan-Bicocca (Italy) and Academic Fellow, Bocconi University (Italy)


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 [email protected]

Developments in Constitutional Courts

  1. The Canadian Supreme Court will be sitting in Quebec for the first time in history.
  2. The High Court of Australia ruled that media companies can be held liable for defamatory comments left on their social media pages.
  3. The Turkish Constitutional Court rejected an application for ill-treatment of a dead body.
  4. The Indian Supreme Court criticized the Government for “cherry-picking” nominees for tribunals across the country.
  5. The Brazilian Supreme Court suspended an indigenous land rights case.

In the News

  1. The Government of Queensland introduced new legislation to strengthen child protection and family support mechanisms.
  2. The Greek Migration Minister proposed new legislation on migration.
  3. A new law is being passed in India, making it harder for couples of different religions to marry.
  4. Delta County declared a new COVID-19 local state of emergency.
  5. Steps are being made to introduce new legislation that would create a US-Israel research and development center on artificial intelligence.

New Scholarship

  1. Tanja Altunjan, The International Criminal Court and Sexual Violence: Between Aspirations and Reality, 22 German Law Journal (2021) (exploring the persisting challenges and the perceived gap between aspirations and reality regarding the prosecution of sexual violence at the international criminal court).
  2. Or Bassok, The Mysterious Meeting between Carl Schmitt and Josef Redlich, 21 International Journal of Constitutional Law (2021) (offering three possible explanations for why Schmitt viewed his encounter with Redlich as influential his road to National Socialism).
  3. Myriam Hunter-Henin, Religious Freedom and the Right against Religious Discrimination: Democracy as the Missing Link, International Journal of Discrimination and the Law (2021) (proposing a novel way for looking at the relationships between religious freedom and religious discrimination).
  4. Michal Krajewski, Relative Authority of Judicial and Extra-Judicial Review. EU Courts, Boards of Appeal, Ombudsman (2021) (engaging with the normative rationale of the judicial review of administrative action and arguing that the functions of judicial review can be to some extent exercised by extra-judicial review mechanisms and by the widely accessible complaint procedure before the European Ombudsman).
  5. Bui Ngoc Son, Constitutional Amendment and Democracy, 30 Minnesota Journal of International Law (2021) (exploring foundational, constructive, progressive, and retrogressive constitutional amendments). 
  6. Arman Sarvarian, The Ossified Debate on a UN Convention on State Responsibility, 70 International and Comparative Law Quarterly (2021) (examining the developments on future action concerning the 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts in the Sixth Committee of the UN General Assembly)
  7. Arianna Vedaschi and Kim Lane Scheppele (eds.), 9/11 and the Rise of Global Anti-Terrorism Law. How the UN Security Council Rules the World (2021) (examining the complex and evolving interaction between international, regional and domestic levels of counter-terrorism law and policies)
  8. Cornelia Weiss and Eva Maria Rey Pinto, Twenty Years After UNSCR 1325: Equal Access to Military Education in the Western Hemisphere?/ Veinte años después de la Resolución 1325: ¿Igualdad en el acceso a la educación militar en el hemisferio occidental?, 15 Estudios En Seguridad Y Defensa 303 (2021)   (examining “legal” and other barriers erected against women from being selected for military education and training — needed for career progression to the highest ranks  — and providing proactive barrier-eliminating solutions).

Calls for Papers and Announcements

  1. The Católica Law Review invites submissions in English or Portuguese for the next issue of the journal. The deadline for the public law issue is September 30, 2021.
  2. The Italian Society of Law and Economics (SIDE) welcomes submissions for its 16th annual conference on December 15-17, 2021. The deadline for submissions is September 30, 2021.
  3. The JUSTICE Human Rights Conference will be held on October 11-12, 2021.
  4. The Conference Committee of the International Initiative Organization for Human Rights (IIOHR) organizes the International Human Right Conference on the Elimination Violence Against Women & Children, Human Trafficking and Child Abuse, which will take place on October 21-24, 2021, in Boston, US, and on October 30-31 in Saint Louis, Senegal.
  5. Díkaion Journal, the Law Journal of the Law and Political Sciences School at Universidad de La Sabana (Colombia), calls for papers for the first issue of 2022 to be published next year’s first semester. The deadline is October 31, 2021.
  6. The Institutum Iurisprudentiae, Academia Sinica (IIAS), hosts the 9th Asian Constitutional Law Forum on May 13-14, 2022. The deadline for submission of abstracts is November 1, 2021.
  7. The Age of Human Rights Journal invites submissions for its June 2022 issue. The deadline is January 1, 2022.
  8. The Institute for Comparative Federalism of Eurac Research, Bolzano/Bozen, the Faculty of Law and the Faculty of Social and Political Sciences of the University of Innsbruck proudly announce the 13th edition of their joint programme, the Winter School of Federalism and Governance 2022. Deadline for applications is 17 October 2021.

Elsewhere Online

  1. Rebecca Barber, How the UN General Assembly Can Respond to Atrocity Crimes at Its 76th Session, Just Security
  2. Juliano Z. Benvindo, Oran Doyle, Chiara Graziani (eds.), Blog Symposium: Covid-19 and the Future of Constitutionalism, IACL/AIDC Blog
  3. Robert Chesney, Jack Goldsmith, Benjamin Wittes, September 11 and the History of Lawfare, Lawfare
  4. Aileen McHarg, Alison L. Young, The Resilience of the (Old) British Constitution, UK Constitutional Law Association Blog
  5. Serhii Lashyn, Court without a Head. The Manifold Crisis of Ukraine’s Constitutional Court, Verfassungsblog
  6. Ciaran Martin, Scotland’s Place in the Union Will Not Be Decided in the Courts: Only Politicians can Enable or Prevent Independence, The Constitution Unit Blog
  7. Haimo Li, Jefferson and Burke on Marat, Danton, and Robespierre, Journal of the American Revolution
Published on September 20, 2021
Author:          Filed under: Uncategorized
 

Choosing Scylla: climate change vs. private property in Chile’s new constitution

Ernesto Vargas Weil, Assistant Professor, University of Chile and Associate Lecturer, University College London

Climate change is here to stay. A few weeks ago, the UN Secretary-General argued that the last report of the Intergovernmental Panel on Climate Change Working Group was ‘a code red for humanity’, urging Governments to take immediate action, especially in containing greenhouse gas emissions and deforestation. Although provisions mandating the State to protect the environment and explicitly enabling Governments to enact regulation to this end have been included in many contemporary constitutions over the last 50 years (e.g., Art. 20a of the German Basic Law, GG; or Art. 19 Nr. 8 of the Chilean Political Constitution, CPR), the Chilean constitutional assembly will probably be the first in history to gather in a scenario in which climate change is such a tangible reality.

Experience suggests that the main challenge for this type of provisions is that environmental regulation can interfere with other constitutional rights, originally developed to protect citizen from other forms of State intervention. The most apparent case is the right to private property. At times, this challenge has been seen as so acute, that in the early 1950s, during the discussions of the European Conventions of Human Rights, the British Government held that the right to private property should not be acknowledged as a human right as it would affect the UK’s national autonomy in matter of economic policy. Since then, things have changed, as governments and courts have learned how to balance policy-oriented regulation with the rights to private property. The constitutional process Chile is currently undergoing is a unique chance to re-think this tension in the context created by climate change.

Read the rest of this entry…
Published on September 17, 2021
Author:          Filed under: Analysis
 

What’s New in Public Law


–Susan Achury, Visiting Lecturer at Texas Christian University


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 [email protected]

Developments in Constitutional Courts

  1. The US Supreme Court decided not to block the controversial Texas abortion law banning all abortions after six weeks of pregnancy.
  2. The Mexican Supreme Court ruled that it is unconstitutional to punish abortion as a crime.
  3. The Constitutional Court of Colombia declared unconstitutional life imprisonment for rapists and murderers of minors because it violates human dignity.
  4. The Constitutional Chamber of the Supreme Court of Justice (CSJ) of El Salvador issued a ruling this Friday in which it enables the incumbent president to compete for immediate reelection.
  5. The US Supreme Court decided Biden administration must comply with the ruling to restart the “remain in Mexico” program for asylum-seekers
  6. Austria Constitutional Court suspended the deportation of Afghan national seeking asylum.
  7. The Constitutional Court of Cape Verde approved the extradition to the US of a Venezuelan ally.
  8. The Constitutional Court of Ecuador defined criteria for expropriation. Private property must be exercised by observing the parameters of social and environmental responsibility.

In the News

  1. The US Justice Department sues Texas over its controversial restrictive abortion law.
  2. Hungary shows support to Poland in its dispute with the European Commission.
  3. The Office of the Inspector General of Colombia asks the Constitutional Court to guarantee gender parity in the Electoral Code.
  4. The Constitutional Court of Colombia asks the Government for explanations about the security of former FARC combatants.
  5. A South African tribunal freezes funds linked to China’s CRRC.
  6. Human Rights Watch reports about widespread suspicious killings of dissidents in Egypt.
  7. President Bolsonaro criticizes the Brazilian judiciary. 
  8. The Inter-American Commission on Human Rights expresses its disapproval of the legislative reforms in judicial matters in El Salvador.
  9. The Commission of the Chamber of Deputies in Chile has approved the bill on equal marriage.
  10. Australian Indigenous leaders filed a complaint with the UN over the proposed heritage bill.

New Scholarship

  1. Arvind Kurian Abraham, Essential Religious Practices Test and the First Amendment: A Comparative Analysis of the Free Exercise of Religion in India and the United States (2021) (comparing free exercise of religion jurisprudence under the Indian Constitution and the US Constitution).
  2. Anuscheh Farahat and Xabier Arzoz, Contesting Austerity (2021) (addressing the different forms of austerity, contestation, and resistance and their impact on the democratic quality of public debates, the trust in public institutions and the legitimacy of law).
  3. James Gibson and Michael Nelson, Judging Inequality: State Supreme Courts and the Inequality Crisis (2021) (identifying the influence of State Supreme Courts in soaring levels of political, legal, economic, and social inequality in the United States).
  4. Arianna Vedaschi, Kim Lane Scheppele, 9/11 and the Rise of Global Anti-Terrorism Law (2021) (examining the role of the roles of the UN Security Council shaping global counter-terrorism policies).
  5. Sandra Botero and Laura Gamboa, Corte al Congreso: Poder judicial y trámite legislativo en Colombia (2021) (assessing the indirect effect of courts on legislative decision-making).
  6. Jorge Ernesto Roa, ¿No(s) representan los jueces constitucionales? (2021) (arguing that courts have a representative function that can be argumentative, deliberative, and meritocratic).
  7. Bertus de Villiers, Joseph Marko, Francesco Palermo, and Sergiu Constantin, Litigating the Rights of Minorities and Indigenous Peoples in Domestic and International Courts (2021) (analyzing the role of courts protecting the rights of minorities and indigenous people).
  8. Tonja Jacobi, Zoe Robinson, and Patrick Leslie, Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia (2021) (comparing strategic advocacy under different institutional settings).
  9. Sandra Liebenberg, Austerity in the midst of a pandemic: pursuing accountability through the socio-economic rights doctrine of non-retrogression (2021) (analyzing the non-retrogression doctrine and its role in advancing greater accountability for rights-eroding budgetary decisions).

Calls for Papers and Announcements

  1. The Institutum Iurisprudentiae, Academia Sinica (IIAS), invites submission for its 9th Asian Constitutional Law Forum 2022 on “Asian Constitutionalism in Troubled Times.” The deadline for submission of abstracts is November 1, 2021.
  2. Young Scholars Initiative on Populism invites submissions for an online workshop. The deadline for submission of abstracts is September 26, 2021.
  3. Georgetown University Law Center & University of Houston Law Center invite submissions for the virtual Colloquium on Race, Racism & American Media. The deadline for submission of abstracts is December 3, 2021.
  4. Southern Political Science Association has extended the deadline for submissions. The deadline for submission of abstracts is September 15, 2021.
  5. The Rehnquist Center invites submissions for its fourth annual National Conference of Constitutional Law Scholars. The deadline for abstracts is October 1, 2021.
  6. The University of Dublin has issued a call for papers for the 2022 Public Law Conference. The Richard Hart Prize for the best paper by an early career scholar will be awarded at the conference. The deadline for submission of abstracts is November 15, 2021.
  7. Submissions are invited for book chapters in the edited volume “Fostering First Gen Success and Inclusion: A Guide for Law Schools,” to be published by Carolina Academic Press. The deadline for chapter proposals is September 1, 2021.
  8. The Age of Human Rights Journal is inviting submissions for its June 2022 issue. (Submissions due January 1, 2022).
  9. Coventry University, The Graduate Institute Geneva, and the University of Pretoria have issued a call for papers for the conference on “Sanctions and Africa: An International Law and Politics Conference.” The deadline for submission of abstracts is September 15, 2021.

Elsewhere Online

  1. Nelson Camilo Sanchez, Roles and Responsibilities of the Private Sector in Transitional Justice Processes in Latin America: The cases of Colombia, Guatemala, and Argentina, DPLF.
  2. Shamshad Pasarlay, Fatal Non-Evolution Afghanistan’s 2004 Constitution and the Collapse of Political Order, Verfassungsblog.
  3. Michael J. Kelly, RBG “I Told You So” Re: Roe v. Wade, JURIST.
  4. Marek Domin, Can People Ask for Early Elections? Slovak Constitutional Court Says No, IACL-AIDC blog.
  5. Eric Goldstein, In Tunisia, President’s Power Grab and an Absent Constitutional Court, JURIST.
  6. Conor Casey, Thinking About Executive Power Post-Pandemic, IACL-AIDC blog.
  7. Harsh Jain and Eeshan Sonak, The New Pension Rules 2021 and the Freedom of Speech of Government Employees – I and II., Indian Constitutional Law and Philosophy blog.
Published on September 13, 2021
Author:          Filed under: Uncategorized
 

One Weird Trick To Defeat Judicial Review: Process as Outcome

Matthew Reid Krell, Lecturer of Law, University of the West Indies Cave Hill

As I write this, a puzzling event has occurred in the United States: the law governing access to abortion has changed. But it changed without Congress enacting a law, without the Supreme Court issuing a ruling, and in fact, without anyone taking any action at all. It changed through inaction, and through the creativity of conservative lawmakers and the confusion of judges. Without “changing” abortion doctrine one bit, American judges have drastically changed the landscape of reproductive rights and opened up a new era in American legal doctrine.

This piece isn’t about the politics of abortion in the United States and on the Court. Nor am I here to speculate on any secret motivations the majority justices may have had. Instead, I want to take the majority at their word and raise some issues embedded in the 400-word order that ended thirty years of incremental abortion rollbacks in one fell swoop. Specifically, I want to discuss the use of procedure to control outcome and evade the mechanisms that developed to place limits on state action. This approach to law represents a dangerous development in American procedural and administrative law that other systems should shun. Instead, judges and lawmakers looking to comparative approaches should prefer other answers to these questions.

Read the rest of this entry…
Published on September 12, 2021
Author:          Filed under: Analysis
 

The Constitutional Chamber in El Salvador and Presidential Reelection: Another Case of Constitutional Authoritarian-Populism

José Ignacio Hernández G., Fellow, Growth Lab-Center for International Development Harvard; Professor of Administrative Law at Universidad Católica Andrés Bello; Invited Professor, Universidad Castilla-La Mancha, and Tashkent University. 

A few months after the mass removal of the constitutional judges in El Salvador, the new Constitutional Chamber of the Supreme Court issued ruling number 1-2021, dated September 3, 2021. Despite explicit constitutional prohibitions, the ruling allowed immediate presidential election. The ruling was based on a constitutional interpretation to protect popular sovereignty from deciding about the presidential reelection.

The new ruling is part of the “Constitutional authoritarian populism” in El Salvador, that is, the interpretation of the Constitution to decimate core values or the constitutional democracy; in this case, to allow immediate presidential reelection despite several constitutional prohibitions, including “unamendable provisions”. In addition, that authoritarian interpretation is based on populist rhetoric.

To explain that conclusion this post is divided into three parts. The first one explains the scope of the constitutional provisions regarding presidential reelection and the 2014 interpretation of the Constitutional Chamber. The second part will analyze ruling number 1-2021 to demonstrate how the new Constitutional Chamber, using populist rhetoric, introduced an unconstitutional “mutation” that changed provisions that cannot be amended or reformed. Finally, the post will analyze why this ruling is another example of “Constitutional authoritarian populism”.

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Published on 5-Tier Kitchen Baker's Rack, Kitchen Hutch with Shelves, Microwa
Author:          Filed under: Developments
 

When Judges Unbound Ulysses: the Case of Presidential Reelection in El Salvador

Manuel Adrian Merino Menjivar, Professor of Constitutional Law, Universidad Gerardo Barrios, El Salvador

In Ulysses Unbound, Jon Elster understands constitutions as a precommitment made by the people to themselves. According to the myth on which he bases his metaphor, when Ulysses returned from the Trojan War, he had to pass through the Isle of Sirens, for which he had been warned by the goddess Circe of the force of the spell of their song and thus, arrived at that place, his travel companions had to cover his ears with wax and tie him hand and foot to the mast of the ship so that he would not succumb to the song of the sirens. The solution worked; nontheless, when the time came, Ulyses begged to be untied, indicating that had he not been tied up he would have yielded to their singing.

In the metaphor, the constitutions represent that mast to which the people are tied at a certain moment and that prevent the fundamental precommitments adopted in them from being undone in a blink of an eye. Within these fundamental precommitments are, with main relevance, the eternity clauses. The eternity clauses are those constitutional contents that the primary constituent power considered unamendable, that is, a precommitment that cannot be dissolved except through a revolutionary action, such as the promulgation of a new Constitution.

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Published on September 9, 2021
Author:          Filed under: Analysis
 

Constituent Power and the Politics of Unamendability

Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law; Cracked Heel Repair Push-up Stick, The Chinese University of Hong Kong, Faculty of Law; and Ngoc Son Bui, The University of Oxford

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

Judicial interventions in questions of constitutional unamendability are usually contentious, but become even more controversial when they encroach upon the activity of constitution making. Adjudication over unconstitutional constitutional amendments already interrogates the appropriate limits to judicial involvement in the constitutional sphere. However, when this kind of adjudication is coupled with direct judicial interference in the exercise of constituent power, the notion of constitutional supremacy clashes even more directly with that of popular sovereignty and the realm of law and the realm of politics explosively collide.[1]

Constitutional unamendability is part of constitutional politics for at least four reasons: (1) the political nature of the constituent power; (2) the political nature of foundational constitutional questions; (3) the political nature of constitutional disagreements; and (4) consequently the political protection of constitutional unamendability.[2] First, the constituent power is not a legal aggregate entity but a politically constructed one. Second, unconstitutional constitutional amendments often touch on fundamental questions of a polity. These questions are not merely legalistic. These are also political questions as they deal with political ideals and ideas, political systems, political institutions, and they may inform political activities and behaviors. Third, the questions of unconstitutional constitutional amendments may generate higher level political disagreements. Constitutional questions often create disagreements, but the fundamental questions concerning the basic structure and identity of the constitutional order may be more controversial and, hence, induce greater disagreement. Fourth, the protection of constitutional unamendability is not merely a legal or judicial concern, but also a political one. As questions of unconstitutional constitutional amendments are foundational political questions which generate reasonable political disagreements, it is myopic to think that UCA is or should be limited to the courts. Tackling such questions often involves political and social actors beyond courts including citizens, legislators, activists, and political parties.[3]

The clash between the legal and the political in constitutional adjudication becomes more exasperated when judges intervene in a constitution-making process that is carried out through a Constituent Assembly. As Andrew Arato explains, Constituent Assemblies are the archetype of revolutionary constituent power: they are conceptualised as sovereign institutions with unlimited powers; they embody the unified will of the people and promise a total rupture from the old regime through a foundational moment.[4] In practice Constituent Assemblies – even highly representative and diverse bodies like the one in Nepal – are often sidelined in constitution-making processes and the task of actually writing the constitution is carried out by a much smaller group of political actors belonging to the dominant elites resulting in the effective exclusion of already marginalized groups.[5] So what extent are judges entitled to patrol the exercise of constitution making and curb potential excesses?

Read the rest of this entry…
Published on September 8, 2021
Author:          Filed under: Analysis
 

Brexit, the Irish Protocol and the “Versailles Effect”

[Editor’s Note: This is from the forthcoming editorial in volume 19, issue 3 of ICON]

J.H.H. Weiler, N.Y.U. School of Law; ICON, Co-Editor-in-Chief

What does the Treaty of Versailles have to do with Brexit, you may be asking yourself? Quite a lot, I would like to suggest.

But a preliminary comment is necessary. In the current state of polarized societies and, increasingly, a polarized academy, an old-style “Voltairian liberal” like myself (of the “I disapprove of what you say, but I will defend to the death your right to say it” ilk), who is, too, an accommodationist by disposition and praxis (of the “let’s look for a solution that can accommodate as much as possible the conflicting positions” ilk), regularly manages to alienate both poles. Say one good word on the redistributive policies of the current Polish government and the response will be brimstone and fire from one pole. (Excuse the pun.) Say one (or more) bad word on their rule of law policies, and dust and ashes will rain down from the other pole. You end up being the “enemy” of both. Polarization. This is not a personal, “poor me” complaint. From the privileged position of a tenured law professor in an elite American law school as well as with the privilege and mellowness that aging brings about (an old, old liberal), I live with such comfortably. But it is, one should admit, inimical to deliberative discourse, let alone civility. The position you do not like is not perceived as an invitation to self-reflection and, mirabile dictu, even a change of opinion, but just as an invitation to conjure up every possible objection in defense of a pre-formed position. When is the last time you heard in such debates the endangered-species words—“Yes, you are right. You have convinced me”?

In an era in which Euroskepticism has moved from the margins of the lunatic fringes into mainstream politics, the same has become true when writing about our (speaking as a European citizen) Union. Making a serious critique of the European Union and its Court (take a look at the recent Wabe decision—“pandering to prejudice for profit” in the words of one Oxford scholar) makes you, ipso facto, a Euroskeptic and “one of them.” Defend the bedrock civility and spiritual significance of the European Construct as envisaged by its Founding Fathers (drawing on their deep Catholic commitment) and, hey presto, you are one of the other “them.”

I am a card-carrying member of the “other them.” I lament deeply Brexit and have run out of words to describe the ineptness of successive British governments, from the Chutzpah of David Cameron (https://doi.org/10.1093/ejil/chw047), the ineptness of Theresa May (https://doi.org/10.1093/ejil/chaa011) and the—pick your own word—of Boris.

Read the rest of this entry…
Published on September 7, 2021
Author:          Filed under: Editorials
 

What’s New in Public Law


Boldizsár Szentgáli-Tóth, research fellow at Centre for Social Sciences, Institute for Legal Studies – Centre of Excellence (Budapest); research fellow at Eotvos Loránd 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 [email protected]

Developments in Constitutional Courts

  1. The Constitutional Tribunal of Poland postponed a planned ruling on whether the domestic Constitution takes precedence over the European Union treaties. The decision in the case could potentially upset the EU legal order.
  2. The Supreme Court of India began holding physical hearings after 18 months of holding only virtual hearings due to the Covid-19 pandemic.
  3. The Constitutional Court of Czechia ruled in favour of the Czech ticket seller Kiwi.com in a dispute with Ryanair over Kiwi’s practices of managing passenger data.
  4. The Supreme Court of the United States refused to block a Texas law prohibiting most abortions after six weeks of pregnancy.
  5. The Electoral Commission of South Africa requested the Constitutional Court to postpone municipal elections until February 2022 due to the Covid-19 pandemic.
  6. The President of Tunisia rejected the judicial review of the extended emergency measures as well as the executive decision on the suspension of the Parliament.

In the News

  1. A woman with 14 tickets won a significant decision in a dispute before a Court of Appeal over whether the city of Michigan violated the U.S. Constitution by chalking her car tires without a search warrant.
  2. A federal judge found that California’s recall process is constitutional, weeks before voting in a recall election against the current governor of California is scheduled to end.
  3. The eighth Regional Rule of Law Forum for South-East Europe took place on September 3-4, 2021.
  4. Large anti-governmental protests took place in Slovakia on September 1, which is the day of the Constitution.
  5. The Parliament of El Salvador adopted a bill dismissing all judges and prosecutors immediately over 60 years (approximately 200 from the 700 judges in the country).
  6. The new data security law in Chine entered into force on September 1, 2021.

New Scholarship

  1. Benjamin Schonthal, The Case for Religious Constitutions: Comparative Constitutional Law among Buddhists and Other Religious Groups (2021) (arguing for the importance of religious constitutions in the study of comparative constitutional law)
  2. Beverley Clough, The Spaces of Mental Capacity Law: Moving Beyond Binaries (forthcoming 2021) (exploring the conceptual spaces and socio-legal context which mental capacity laws inhabit)
  3. James Gallen, Tanya Ní Mhuirthile (eds), Law, Responsibility and Vulnerability: State Accountability and Responsiveness (forthcoming 2021) (addressing how law and public policy cause or exacerbate vulnerability in individuals and groups)
  4. Martin Belov (ed), Courts and Judicial Activism under Crisis Conditions: Policy Making in a Time of Illiberalism and Emergency Constitutionalism (forthcoming 2021) (examining topical issues related to the impact of courts on constitutional politics during extreme conditions)
  5. Eugénie Mérieau, Constitutional Bricolage: Thailand’s Sacred Monarchy vs. The Rule of Law (2021) (exploring the unique constitutional model in operation in Thailand)
  6. Stuart Wilson, Human rights and the transformation of property (2021) (offering a critical account of recent developments in residential lease law, mortgage bond law and eviction law in South Africa, and providing a policy rationale for these developments)

Calls for Papers and Announcements

  1. The Yearbook of Socio-Economic Constitutions invites submissions for the third volume of the Yearbook (2022). The deadline for paper proposals is September 17, 2021.
  2. The Centre for Financial and Corporate Integrity of Coventry University, together with the Graduate Institute Geneva and the University of Pretoria, welcome submissions to an international law and politics conference on sanctions and Africa. The conference will take place online and at the Coventry University London Campus on December 9-10, 2021. The deadline for abstracts is September 15, 2021.
  3. International Journal of Socio-Legal Research invites submission for its seventh volume. The deadline for submissions is September 20, 2021.
  4. International Journal of Legal Science and Innovation invites submission for its third volume. The deadline for submissions is September 7, 2021. Bratislava Law Review invites submission for volume 5, of the journal. The deadline for submissions is September 15, 2021.
  5. The 25th British Legal History Conference 2022, in association with the Irish Legal History Society Queen’s University in Belfast, invite submission for a conference on “Law and Constitutional Change,” to be held on July 6-9, 2022. The deadline for submission of abstracts has been extended to September 27, 2021.
  6. The Journal of Constitutional Law Review invites submissions to be published in the next issue (December 2021). The deadline for submissions is October 2021.
  7. The Department of Mercantile Law at the University of the Free State organizes the Seventh Annual International Mercantile Law Conference, to be held on November 3-5, 2021. The deadline for submission of abstracts is October 1, 2021.
  8. The University of Milan, in the framework of the initiatives promoted by the roundtable for “Reception and Integration in the University”, as a member of the international network “Scholars at Risk” (SAR) and its Italian section SAR-Italia, and in view of the growing number of scholars at risk around the world applying for protection with European Union (EU) universities, issues a call for applications for 3 positions of Visiting at-risk Scholar financed by University’s funds.

Elsewhere Online

  1. Rupprecht Podszun, Private enforcement and the Digital Markets Act: The Commission will not be able to do this alone, Verfassungsblog
  2. Naomi Appelman, João Pedro Quintais, and Ronan Fahy, Control Freak .750 Hunting Bars Matte Black -8", Verfassungsblog
  3. Kinga Kálmán, Where is the ‘mushroom cloud’? The PSPP decision’s perspective in one year of hindsight. Constitutional Discourse
  4. Giovanni De Gregorio and Oreste Pollicino, The European Constitutional Road to Address Platform Power, Verfassungsblog
  5. Thomas A. Barnico, The Title IX Sleigh Ride, New England Board of Higher Education
Published on September 6, 2021
Author:          Filed under: Developments