What’s New in Public Law

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

Developments in Constitutional Courts

1. The Supreme Constitutional Court of Egypt struck down a provision of the protest law (Act No. 107) that permits the country’s Interior Minister to cancel scheduled protests.
2. The Constitutional Court of Romania referred a same-sex couple’s marriage case to the European Court of Justice.
3. The Constitutional Court of Malta assigned an opposition party two additional seats in the Parliament.
4. The Constitutional Court of South Africa warned that the principle that parties taking public institutions to court need not cover the state’s costs if the case relates to a genuine constitutional matter (Biowatch principle) should not be abused.
5. The Constitutional Court of South Africa held that a surviving partner in a same-sex permanent partnership inherits the deceased’s intestate estate.
6. The Constitutional Court of South Africa upheld a requirement of genetic link between the baby and at least one of the people commissioning the surrogate pregnancy.
7. The Constitutional Court of Bosnia and Herzegovina annulled results of the Serb Republic Day referendum.
8. The Council of State of Italy suspended parts of a government reform that forced large cooperative banks to become joint-stock companies, pending a ruling by the Constitutional Court.
9. The Federal Constitutional Court of Germany held that absolute exclusion of exemptions from the special protection of silence on Good Friday was disproportionate.
10. The Federal Constitutional Court of Germany will decide on December 6 whether the country’s decision to exit nuclear power was constitutional.
11. The Supreme Court of India ordered cinemas to play the national anthem before each screening.
12. Three Israel Supreme Court Justices have been sued in Chile for voting in favor of authorizing the construction of Israel’s wall around the West Bank.
13. The US Supreme Court ruled that the double jeopardy clause does not bar retrials for inconsistent verdicts.

In the News

1. South Korean opposition parties filed an impeachment motion against President Park Geun-hye. The Constitutional Court has 180 days to approve or reject it, if the motion passes.
2. The Government of Nepal registered a constitutional amendment bill on federal provinces, citizenship, language, and representation in the Upper House.
3. The Malawi government seeks to raise the constitutional definition of adulthood from 16 to 18 years of age to align with obligations arising from the African Charter on the Rights and Welfare of the Child.
4. The Pakistan ruling party seeks a constitutional amendment proposing a right to appeal against an order of the Supreme Court passed in suo motu cases.
5. Grenadians rejected proposed constitutional reforms to replace Privy Council with Caribbean Court of Justice.
6. Poland’s Ombudsman criticized a bill that would ban any assemblies from taking place at the same time and place as those organized by the authorities or churches.
7. The Brazilian Senate approved a constitutional amendment to limit federal spending growth. The Chamber of Deputies passed a bill, by 450 votes to 1, that would weaken the authority of public prosecutors to investigate lawmakers for graft. And the Brazilian Supreme Court voted to put Senate President on trial for alleged embezzlement.
8. US Representative Steve Cohen  introduced a constitutional amendment proposal to eliminate the electoral college and allow for direct election of the President and Vice President.
9. The Colombian Congress passed an amended peace accord with FARC. The lawmakers presently await a Constitutional Court decision on whether Congress can use “fast track” authority in passing enabling legislation to implement the deal.
10. Austria reruns its presidential election, after the Constitutional Court overturned the last vote in July due to irregularities in the processing of the postal vote.
11. Italy votes on a constitutional reform referendum involving a series of major changes to the Italian political system.
12. Gabon postponed its legislative election, originally set for December 27, until next July because of a lack of funds.

New Scholarship

1. Antonia Baraggia, L’autonomia universitaria nel quadro costituzionale italiano ed europeo (2016) (analyzing the development of university autonomy in a multilevel legal framework of the European, national, and the local legal orders regulating higher education, with a focus on Italy)
2. Nikos Skoutaris, The Paradox of the Europeanisation of Intrastate Conflicts, 59 German Yearbook of International Law(forthcoming 2016) (arguing that the EU tends to accommodate intrastate conflict in the Member States post-accession, rather than to mobilize its resources for conflict resolution)
3. Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State (2016) (arguing that the arc of law has bent steadily toward deference to the administrative state, from the once imagined law as an empire and judges as its princes)
4. Ilya Somin, Federalism and the Roberts Court, 46 Publius: The Journal of Federalism (2016) (examining the US Supreme Court’s federalism jurisprudence in the Roberts Court)
5. Janneke Gerards, The Margin of Appreciation Doctrine, the Very Weighty Reasons Test and Grounds of Discrimination, in The principle of discrimination and the European Convention of Human Rights, Balboni (ed.) (forthcoming 2016) (investigating the difference between the margin of appreciation doctrine and the “very weighty reasons test” of the European Court of Human Rights)
6. James Fowkes, Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa (2016) (demonstrating how support from the African National Congress government and other political actors has underpinned the South African Court’s landmark cases, which are often applauded too narrowly as merely judicial achievements)
7. Sarah Nason, Reconstructing Judicial Review (2016) (offering a new interpretation of judicial review in England and Wales as being concerned with the advancement of justice and good governance, rather than primarily ultra vires and common law constitutionalism)
8. Marta Otto, The Right to Privacy in Employment: A Comparative Analysis (2016) (analyzing European, American, and Canadian regulatory models of privacy protection in the employment context)
9. Michael Asimow and Yoav Dotan, Open and Closed Judicial Review of Agency Action: The Conflicting U.S. and Israeli Approaches, 64 American Journal of Comparative Law (2016) (examining the difference in approach of reviewing courts to judicial review of administrative agency action, open and closed, in Israel and United States)
10. Kimberly L. Wehle, Public Laws and Private Lawmakers, 93 Washington University Law Review (2016) (arguing for a more nuanced take on nondelegation doctrine considering subdelegation of policymaking authority to private parties)
11. Beth Goldblatt, Violence Against Women in South Africa – Constitutional Responses and Opportunities, in Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution’s Influence, Rosalind Dixon and Theunis Roux (eds.) (forthcoming 2016) (surveying the jurisprudence of the South African Constitutional Court on violence against women and assessing the Court’s record in this area)
12. Harry Hobbs, Revisiting the Scope of the Race Power after McCloy, 27 Public Law Review 264 (2016) (tracing the jurisprudence of the High Court of Australia on the race power under section 51(xxvi) of the Constitution)
13. Joel I. Colón-Ríos, What Is a Constitutional Transition, National Journal of Constitutional Law (forthcoming 2017) (providing a framework for identification of instances of constitutional transition through lenses of the concept of the material constitution and of the theory of constituent power)
14. Pan Mohamad Faiz, Legal Problems of Dualism of Judicial Review System in Indonesia, 16 Journal Dinamika Hukum (2016) (critically analyzing problems caused by the dualism of judicial review system in Indonesia, vested dually with the Constitutional Court and the Supreme Court, and suggesting that review powers should be integrated under the Constitutional Court)
15. Mario Ricca, A Modest Proposal: An Overgrown Constitutional Path to Cultural/Religious Pluralism in Italy, CALUMET – Intercultural Law and Humanities Review (2016) (proposing to broaden the meaning and scope of “intese” (agreements) between the state and minority denominations in Italy, to achieve the pluralistic aspirations of the Italian Constitution and the need for the hetero-integration of national legal systems)

Call for Papers and Announcements

1. Antonia Baraggia, Luca Pietro Vanoni, Richard Albert, and Cristina Fasone will convene an International Symposium on “The Separation of Powers: A Global Constitutional Dialogue,” to be held in Milan, Italy on May 22, 2017. The Symposium is Inspired by Prof. Giovanni Bognetti’s book: La Separazione dei Poteri. Interested scholars are invited to submit a CV and an abstract no longer than 500 words by January 15, 2017 to separationofpowersmay22@gmail.com.
2. The School of Law at the University of Portsmouth and the European University Institute (EUI) invite papers for a 2-day international conference on “Human Dignity and the Constitutional Crisis in Europe: Humanity, Democracy, Social Europe,” to be held in Florence, on June 15-16, 2017.
3. European Society of International Law (ESIL) and the University of Naples Federico II invite submissions for the 13th ESIL Annual Conference on “Global Public Goods, Global Commons and Fundamental Values: The Responses of International Law,” to be held on September 7-9, 2017. The deadline for submissions is January 31, 2017.
4. University College London (UCL) Faculty of Laws invites submissions for its 2017 Postgraduate and Early Careers Conference on “The Art of Balancing: The Role of Law in Reconciling Competing Interests,” to be held on March 30-31, 2017, at in London.
5. Máximo Langer, Jacqueline Ross, and Kim Lane Scheppele will convene the next annual Comparative Law Work-in-Progress Workshop, to be held on April 28-29, 2017, at UCLA School of Law. Interested authors should submit papers to Máximo Langer at UCLA School of Law langer@law.ucla.edu by February 1, 2017.
6. The Housing Law Research Network invites abstracts for its third Annual Housing Law Symposium on the theme “Human Rights, Housing and Dispute Resolution,” at Malmö University, Sweden on March 23-24, 2017. Submit your abstract to Julian Sidoli, Michel Vols, or Maria Olinda Garcia by January 1, 2017.
7. The Brown Legal Studies initiative invites paper submissions on the subject of “Law and Democracy” for its second Annual Graduate Student Conference. The deadline for abstract submissions is January 16, 2017.
8. The Stanford Law School and the University of Pennsylvania Law School invite abstract submissions for their tenth International Junior Faculty Forum (IJFF), to be held at Stanford Law School in October 2017. The due date for abstracts is January 16, 2017.
9. PluriCourts and ICourts invite paper submissions in political science and philosophy for a joint workshop on “Gender on the International Bench,” to be held in Oslo on March 23-24, 2017. Aims of the workshop are to better understand the patterns and effects of gender diversity and inequality on international courts, to critically assess reasons to be concerned with the gender disparity, and to identify challenges and ways to alleviate disparities that should be changed.
10. The Journal of the Oxford Centre for Socio-Legal Studies (JOxCSLS) invites submissions for its first issue of 2017. Deadline for submissions is January 8, 2017.
11. Escola de Direito de São Paulo da FGV, Oxford Human Rights Hub, University of the Witwatersrand School of Law, and Universidad de Los Andes invite paper submissions for an international conference on “Beyond Human Rights? Rethinking Gender Equality in Lan and Politics,” to be held in Bogotà, Colombia on October 19-20, 2017. The deadline for abstracts is December 10, 2016.
12. The Japanese Studies Association of Australia invites paper submissions for its Biennial Conference on “Debating Democracy in Japan,” to be held at the University in Wollongong on June 26-30, 2017. The deadline for submissions is December 9, 2016.
13. The Italian Association of Comparative Law (AIDC) opens an international Call for Papers on the subject Jus Dicere in a Globalized World. The selection committee will prefer papers presented by full and associate professors, although it may make a limited amount of exceptions. Papers should be in Italian or English, and may be presented in either language. The proposal must be submitted by December 20, 2016.

Elsewhere Online

1. Tom Ginsburg, Constitutional Implications of the Trump Administration, Blog of the IACL, AIDC
2. Thomas Fleiner, Decisions of the Swiss Sovereign on November 27 2016, Constitution Making and Constitutional Change
3. Corey Brettschneider, Local and State Government Can Protect the Constitution From Trump, Time
4. Pierre de Vos, Review of State Capture Report: The Legal Issues, Constitutionally Speaking
5. Gautam Bhatia, The Illegality of the Supreme Court’s National Anthem Order, Indian Constitutional Law and Philosophy
6. Noah Feldman, Indian Nationalism Goes to the Movies, Bloomberg View
7. Shubhankar Dam, A constitutional law expert explains why the Modi government can’t stop Indians from accessing their money, Quartz
8. Rory Little, The unanimous first opinion of the term: A vacated conviction may be considered in assessing the preclusive double jeopardy effect of mixed acquittals and convictions, SCOTUSblog
9. Leonid Sirota, Where Is the Grass Greener?, Double Aspect
10. Statement by the former presidents of the Constitutional Tribunal: Marek Safjan, Jerzy Stępień, Bohdan Zdziennicki and Andrzej Zoll, EUI Constitutionalism and Politics
11. Richard Percival, Does the UK Supreme Court have enough power?, The Conversation
12. Thomas Poole, Losing our Religion? Public Law and Brexit, UK Constitutional Law Association
13. Eric King and Daniella Lock, Investigatory Powers Bill: Key Changes Made by the Lords, UK Constitutional Law Association
14. Mark Elliott, Article 50, the royal prerogative, and the European Parliamentary Elections Act 2002, Public Law for Everyone
15. Nikos Skoutaris, Scotland, Catalonia and the Constitutional Taboo of Secession, Verfassungsblog
16. Oliver Garner, After Fragmentation: The Constitution of a Core European Citizenry?, Verfassungsblog
17. Sinara Gumieri and Lucia Berro, Sexual and Reproductive Rights in the Courtroom: Litigation Strategies in Light of the Zika Outbreak, Oxford Human Rights Hub
18. Kcasey McLoughlin, Chief Justice Susan Kiefel and the politics of judicial diversity, AUSPUBLAW
19. Nasredeen Abdulbari, The Sudan National Dialogue and constitutional reforms: Co-opting mild opponents?, ConstitutionNet