What’s New in Comparative Public Law

–Simon Drugda, Nagoya University Graduate School of Law (Japan)

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative 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 comparative public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Comparative Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

1. The Constitutional Court of Colombia revoked licenses of mining companies to develop moorlands in the Colombian Andes.
2. The President of Slovakia refused to appoint candidates to be judges of the Constitutional Court until the March general election.
3. The Constitutional Court of Benin authorized postponing the first round of Benin’s presidential election to March, following delays in distribution of voters cards.
4. The U.S. Supreme Court temporarily stayed the Clean Power Plan, an initiative to limit carbon emissions from power plants.
5. The Supreme Court of Venezuela upheld a presidential decree that expands President Nicolas Maduro’s authority over the economy, to counteract an economic emergency Venezuela faces.
6. The Supreme Court of India called on federal states to devise a uniform policy to provide compensation for victims of rape and other forms of sexual assault.
7. The Supreme Court of India upheld the power of district and state authorities to impose a limited ban on mobile Internet when needed to safeguard law and order.
8. The Constitutional Court of Malta held that a law regulating composition of industrial tribunals breaches the right to a fair hearing.
9. The Supreme Court of Israel ruled that all public mikvahs in the country must open up to non-Orthodox conversion rites.
10. The Federal Constitutional Court of Germany held that treaty overrides by national statutory law are permissible under the Constitution.

In the News

1. The Lower House of the French Parliament voted in favor of enshrining in the Constitution the process of declaring a state of national emergency.
2. The Venice Commission began an investigation into Poland’s changes to its Constitutional Court.
3. Tajikistan plans to hold a referendum in May to amend its Constitution.
4. The Constitution Drafting Assembly in Libya presented the second draft proposal of Libya’s new Constitution.
5. Japan’s Prime Minister called for changing the war-renouncing Article 9 of the Japanese Constitution.
6. Nigerian Sultan proposed a constitutional amendment to integrate traditional and religious institutions into the country’s security architecture.
7. Chad’s President, Idriss Deby, in power for more than a quarter of a century, said he would reintroduce constitutional term limits if he gets reelected for a fifth term in April.
8. Kuwait supports international efforts against Islamist groups in Iraq and Syria but not with troops as its constitution prevents it from a resort to armed force in anything but defensive wars.
9. Portugal’s Parliament overturned a presidential veto on a bill legalizing adoption by same-sex couples.

New Scholarship

1. Richard Albert, American Exceptionalism in Constitutional Amendment, 68 Arkansas Law Review (forthcoming 2016; symposium issue) (exploring the uniqueness of constitutional amendment in the United States as compared to the rest of the democratic world)
2. Richard Bellamy, Between Cosmopolis and Community: Justice and Legitimacy in a European Union of Peoples, in Nationalism and Globalisation: New Settings, New Challenges, Stephen Tierney ed. (2015) (proposing a form of “cosmopolitan statism” as the most appropriate way to think about the EU and regulatory bodies and norms in the international sphere more generally)
3. Kevin Casas and Daniel Zovatto, The Cost of Democracy: Essays on Political Finance in Latin America, Organization of American States, Inter-American Dialogue, International IDEA (2016) (discussing the risks that various political financing practices entail for democracy, and the best approaches to regulating the role of money in politics in Latin America)
4. Yasmin Dawood, The Senate Reference: Constitutional Change and Democracy, 60 McGill Law Journal (2015) (arguing that the interpretation of the constitutional amending procedures by the Supreme Court of Canada in the Senate Reform Reference is based upon a deeper democratic commitment to ensuring dialogue and deliberation between and among the relevant stakeholders)
5. Adam M. Dodek, The Politics of the Senate Reform Reference: Fidelity, Frustration and Federal Unilateralism, 60 McGill Law Journal (2015) (analyzing the Senate Reform Reference decided by the Supreme Court of Canada on several political levels, from interparty, to legal and constitutional levels)
6. Mark Elliott, From Heresy to Orthodoxy: Substantive Legitimate Expectations in English Public Law, in Legitimate Expectations in the Common Law World, Matthew Groves and Greg Weeks eds. (forthcoming) (charting the development of the substantive legitimate expectation doctrine on English administrative law over recent decades, and critically examining the reasons for its transformation from “heresy” to an accepted practice)
7. Tamas Gyorfi, A Theory of Weak Judicial Review, in Against the New Constitutionalism (forthcoming) (arguing that judicial review can be weak in three different dimensions and distinguishing accordingly three distinct forms of weak judicial review)
8. Mark Jia, China’s Constitutional Entrepreneurs, 64 American Journal of Comparative Law (forthcoming) (revisiting citizen activism, popular mobilization and the use of constitutional discourse to influence state action in the Hu Jintao-era in China)
9. Shay Lavie, Discretionary Review and Undesired Cases, European Journal of Law and Economics (forthcoming) (examining how courts deal with cases that may result in adverse post-judgment reactions when they can avoid adjudication exercising control over their dockets)
10. Mary Liston, Transubstantiation in Canadian Public Law: Processing Substance and Instantiating Process, in Public Law Adjudication in Common Law Systems: Process and Substance, John Bell, Mark Elliott, Jason Varuhas and Philip Murray eds. (forthcoming) (examining the practice in Canadian public law that blurs process and substance, with recent developments tying the two evermore closely)
11. Hans-Martien ten Napel and Wim Voermans eds., The Powers That Be, Rethinking the Separation of Powers (2016) (seeking to answer the question whether the combination of the concepts of democratic legitimacy and the separation of powers is still viable outside a traditional state context)
12. David Prendergast, The Conventionality of Constitutional Law, Dublin University Law Journal (2015) (examining Oran Doyle’s account of “conventional constitutional law” in the Irish legal system as a separate and additional to three recognized types of constitutional law and arguing instead that conventionality is a feature of all constitutional law, rather than its distinct category)
13. David Prendergast, Article 16 of the Irish Constitution and Judicial Review of Electoral Processes, in Judges, Politics and The Constitution, Cahillane, Gallen, and Hickey eds. (forthcoming 2016) (examining judicial development of the Article 16 of the Constitution of Ireland, which provides for the composition of, and election to, Dáil Éireann, Ireland’s Lower House of Parliament)
14. Ioanna Tourkochoriti, Jenkins v. Kingsgate and the Migration of the US Disparate Impact Doctrine in EU Law, in EU Law Stories, Bill Davies and Fernanda Nicola eds. (forthcoming) (analyzing the decision of the Court of Justice of the EU in Jenkins v. Kingsgate and proposing an interpretation of the divergence in operation of the concept of “indirect discrimination” in the US and the EU)
15. Maartje De Visser, A Critical Assessment of the Role of the Venice Commission in Processes of Domestic Constitutional Reform, 63 American Journal of Comparative Law (2015) (examining the involvement of the Venice Commission in processes of constitutional changes across different jurisdictions and critically assessing its performance in this role on case studies of constitutional reform projects in Iceland, Tunisia, Belgium and Hungary)

Call for Papers and Announcements

1. Yale, Stanford, and Harvard Law Schools announced the 17th session of the Junior Faculty Forum to be held at Yale Law School on June 28-29, 2016. The deadline for submissions is February 29, 2016. Topics for the upcoming 2016 meeting and additional information can be found here.
2. PluriCourts, WZB Social Science Research Center and Sydney Law School, University of Sydney issued a call for papers for the workshop “Courts and Public Reason in Global Public Law” to be held in Berlin, in July 2016. The deadline for submission is April 1, 2016.
3. International Institute for Democracy and Electoral Assistance (International IDEA) and Electoral Integrity Project (EIP; Harvard University and University of Sydney) invite submissions for the 2016 Electoral Integrity graduate student essay competition. The theme of the competition is “Contentious elections, conflict and regime change.” The deadline for submissions is February 29, 2016.
4. The University of Exeter Law School and the Eötvös Loránd University (ELTE), Faculty of Social Sciences issued a call for papers for a conference to be held in Budapest on June 23-24, 2016 with a theme “Rethinking European Constitutional Democracy – With Special Focus on the United Kingdom and Hungary.” The deadline for submission abstracts is March 14, 2016.
5. Asian Law and Society Association (ALSA) issued a call for papers and panel proposals for its Inaugural Conference “Law and Society in Asia: Defining and Advancing the Field,” to be held at National University in Singapore on 22-23 September 2016.
6. Lynette J. Chua (NUS Law) and David M. Engel (State University of New York, Buffalo) will convene a series of panels entitled, “Legal Culture, Consciousness, and Conflict in Asia.” They invite scholars researching and writing about legal consciousness and legal culture in Asian societies to submit abstracts of their papers to be considered for one of these panels. The deadline for submissions is March 31, 2016.

Elsewhere Online

1. Duncan Okubasu Munabi, “The Dr. Magufuli style”: Why Apt Priorities Should Follow Constitutional Formulations of Socio-Economic Rights in Sub-Saharan Africa, Oxford Human Rights Hub
2. Karuna Maharaj, Bombay High Court Makes Right to Clean Toilets a Fundamental Right for Women in India, Oxford Human Rights Hub
3. Pavlos Eleftheriadis, On the new Legal Settlement of the UK with the EU, Verfassungsblog
4. Colin P.A. Jones, What’s in a surname? A court divorced from reality, The Japan Times
5. Munkhsaikhan Odonkhuu, Mongolia: A Vain Constitutional Attempt to Consolidate Parliamentary Democracy, ConstitutionNet
6. Melisa Crouch, Dawn of a Democratic Era or Dialogue with Dictators? The Challenges Ahead for Myanmar’s New Leaders, ConstitutionNet
7. Jeff King, On the Proposal for a UK Constitutional Court, UK Constitutional Law Association
8. Pierre de Vos, Nkandla: What Should Have Happened, But Never Did, Constitutionally Speaking
9. Ally Possi, It’s official: The East African Court of Justice can now adjudicate human rights cases, AfricLaw
10. Ilya Shapiro, Obama’s Abysmal Record Before the Supreme Court, Cato Institute
11. Stephen Griffin, Informal Constitutional Change and the “Irrelevance” of Formal Amendments, Balkinization