Call for Papers Younger Scholars Forum in Comparative Law XXth International Congress 2018 International Academy of Comparative Law Fukuoka, Japan July 25, 2018

Call for Papers

Younger Scholars Forum in Comparative Law

XXth International Congress 2018

International Academy of Comparative Law

Fukuoka, Japan

July 25, 2018

We invite younger scholars to participate in the first-ever Younger Scholars Forum in
Comparative Law, to be held in Fukuoka, Japan on Wednesday, July 25, 2018, from 9:00am to
12:00pm as part of the larger quadrennial Congress of Comparative Law organized by the
International Academy of Comparative Law (IACL).
Abstracts are invited for eight (8) Workshops and one (1) TED-style Speakers’ Corner. All
nine sessions will be held concurrently from 9:00am to 12:00pm on the day of the Forum. More
details follow below on the subject-matter of each Workshop and on the format of the Speakers’
Corner.
Abstracts may be submitted in either English or French, the two official languages of the
IACL.
The Congress
The IACL hosts a general Congress of Comparative Law every four years. It is the premiere
gathering for scholars of comparative law. It is a “general” Congress because scholars of all fields
attend and participate in Workshops on specific subjects that span the broad range of private and
public law. To learn more about the IACL, here is its website: http://iuscomparatum.info. And here
is a description of the IACL itself: http://iuscomparatum.info/general-presentation.
The Younger Scholars Forum in Comparative Law
For the first time in its history (the first general Congress was held at The Hague in 1932), the
IACL will host a program for younger scholars, defined as those scholars with no more than
ten years of tenure-track faculty experience. This includes graduate students as well as postdoctoral
fellows, lecturers and visiting affiliates who have yet to secure a continuing faculty
appointment.
The Younger Scholars Forum in Comparative Law is chaired and convened by Richard Albert
(Canada/USA) along with vice-chairs Luisa Fernanda García López (Colombia) and Maxime StHilaire
(Canada). The chair is supported by a Program Committee and a Senior Advisory
Committee. Members of both committees are identified further down below. The Program
Committee is composed of three subcommittees: the Planning & Priorities subcommittee, cochaired
by Cora Chan (China) and Yaniv Roznai (Israel); the Information & Recruitment
subcommittee, co-chaired by Cristina Fasone (Italy) and Daniel Wunder Hachem (Brazil); and the
Communications & Technology subcommittee, chaired by John Haskell (United Kingdom). 
[2]
Workshops
Each Workshop will be conducted as a discussion group structured around accepted papers. Each
Workshop will feature two Moderators and a Distinguished Provocateur-Discussant. The
moderators will select up to 25 participants for a wide-ranging discussion that will run for the
duration of the three-hour session. The Distinguished Provocateur-Discussant will comment on
remarks made by participants, draw connections among the points made by the participants, seed
the discussion with new points and questions, as well as challenge, reinforce and/or complicate the
comments made by the participants. Discussions will be conducted in both English and French.
Each of the Workshops follows below with an abstract identifying the Moderators and
Distinguished Provocateur-Discussants.
Speakers’ Corner
The Speakers’ Corner will feature 15 to 18 TED-style 9-minute oral presentations on a scholarly
subject related to a topic of the speaker’s choice in comparative law. All presentations will be
recorded live in front of an audience at the Forum and uploaded on YouTube for larger
dissemination with the global community of comparative law.
How to Participate
By September 15, 2017, younger scholars should email an abstract between 150 and 500 words
to the Corresponding Moderator of the Workshop in which they would like to participate. All
Corresponding Moderators are identified below in connection with each Workshop. For those
interested in participating in the Speakers’ Corner, younger scholars should email an abstract
between 150 and 500 words to the Director of the Speakers’ Corner, also identified further below.
Applicants will be notified by October 15, 2017.
The IACL does not cover expenses for any participant, including Moderators and Distinguished
Provocateur-Discussants. But we believe that applicants’ home institutions will support
participation in this event given the prestige and history of the IACL along with the special
opportunity to exchange ideas and interact with younger scholars, Moderators and Distinguished
Provocateur-Discussants from around the world.
All successful participants will have to register with the IACL. No other affiliation is required to
participate in this program.
Questions
For questions about the Workshops, please contact Program Committee vice-chairs Luisa
Fernanda García López (Colombia) at luisa.garcia@urosario.edu.co or Maxime St-Hilaire
(Canada) at Maxime.St-Hilaire@usherbrooke.ca.
For questions about the Speakers’ Corner, please contact the Director John Haskell (United
Kingdom) at johndhaskell@gmail.com. 
[3]
For questions about the IACL, please contact Program Committee Chair Richard Albert at
Richard.Albert@bc.edu. 

Northern Ireland and ‘Brexit’: The European Economic Area Option

Brian Doherty

Independent

John Temple Lang

University of Dublin - Trinity College; Cleary Gottlieb Steen & Hamilton LLP

Christopher McCrudden

Queen's University Belfast - School of Law; University of Michigan Law School

Lee McGowan

Queen's University Belfast - Department of Politics and International Studies

David Phinnemore

Queen's University Belfast

Dagmar Schiek

Queen's University Belfast - School of Law, Centre of European and Transnational Legal Studies

Date Written: March 15, 2017

Abstract
UK withdrawal from the EU poses many challenges for Northern Ireland. The preferred option of Northern Ireland's First Minister and deputy First Minister is, in many respects, for the status quo to be maintained. An approach that could mitigate some of the impact of Brexit on Northern Ireland and maintain much of the economic status quo is for Northern Ireland to become a member of the European Economic Area (EEA). This paper sets out what the EEA offers and highlights how EEA membership might be achieved as well as the issues it raises. In the EEA, Northern Ireland would retain full access to the Single Market. It would continue to be part of a European market with the free movement of goods, services, capital and people. EEA membership would also permit some citizenship rights to be maintained. It would not be a panacea, however. It would also bring with it political and legal challenges. But it is a known arrangement and would therefore ensure a significant degree of certainty.

Keywords: Brexit, Northern Ireland, European Economic Area, EEA

Full text available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2933715

Shany: All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee

All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

January 1, 2017

Abstract

The present article seeks to explore the possibility that a gap exists between the perceived rejection of the margin of appreciation (MoA) doctrine by the UN Human Rights Committee (HRC), and its actual practice of employing substitute, MoA-like approaches. The existence of such a gap might be explained by the proposition that some aspects of the MoA doctrine are an indispensable element of international adjudication involving state conduct. It may also suggest that there are policy considerations which lead some international human rights bodies not to embrace explicitly the MoA doctrine or to downplay in their jurisprudence the prominence of similar deference-granting doctrines. 

Part One of the article surveys the application of the MoA doctrine in the case law of the European Court of Human Rights (ECtHR), identifying three analytically separate prongs – application of law to facts, balancing of norms in the course of law-application and balancing of norms in the course of law interpretation. Part Two then moves to discuss analogous legal moves taken by the HRC, while noting the remaining differences between the approaches of the two bodies. Part Three concludes.

Keywords: International human rights law, margin of appreciation, European Court of Human Rights, Human Rights Committee, judicial Deference, Treaty, Interpretation, International Courts

Full text available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2925652

Territorial Disputes in the Context of Secessionist Conflicts M. Kohen & M. Hebie (eds), Research Handbook on Territorial Disputes in International Law, Edward Elgar Publishing, 2017

Territorial Disputes in the Context of Secessionist Conflicts

M. Kohen & M. Hebie (eds), Research Handbook on Territorial Disputes in International Law, Edward Elgar Publishing, 2017

Theodore Christakis

University Grenoble-Alpes, CESICE, France; Institut Universitaire de France

Aristoteles Constantinides

University of Cyprus

Date Written: June 5, 2016

Abstract

In this chapter, we explore the territorial dimension of non-decolonization secessionist conflicts in international law. Our investigation is divided in three parts. The first part focuses on secessions resulting from violations of jus cogens norms. We conclude that contemporary international law prohibits such secessions and prescribes non-recognition as the legal consequence. In the second part, we explore the legal framework under general international law relating to unilateral secessions that do not involve violations of jus cogens. We conclude that even though international law neither authorizes nor outright prohibits unilateral secession it sets many obstacles and presumptions against its ultimate success, but ultimately leaves some space for the principle of effectiveness in exceptional cases. Our third part investigates consensual agreements in the context of secessionist conflicts, which have either led to the creation of new states or accommodated the self-determination aspirations of separatist entities within parent states based on territorial self-governance arrangements. This part also highlights the interplay between consent, effectivités and uti possidetis in state practice and also gives a close look to three arbitrations that dealt with territorial disputes in various non/post-colonial contexts.

Keywords: secession, self-determination, territorial disputes, effectiveness, jus cogens, recognition, non-recognition, uti possidetis, consent, territorial self-government, autonomy

Full text available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927644

Cristina Fasone The influence of standing committees on the forms of government The case of France, Italy and the UK

Cristina Fasone


The influence of standing committees on the forms of government. The case of France, Italy and the UK, Diritticomparati, la Rivista:

available at: http://diritto.typepad.com/files/diritticomparati_workingpapers4-2017.pdf

May 24th, 2017 Scuola superiore "Sant'Anna", Pisa Symposium on the Constitution of Canada: History, Evolution, Influence and Reform

May 24th, 2017

Scuola superiore "Sant'Anna", Pisa

Symposium on the Constitution of Canada: History, Evolution, Influence and Reform

Full program: http://stals.sssup.it/files/Canada%20STALS.pdf

Imposed Constitutions with Consent?

Richard Albert 

Boston College - Law School; Yale University - Law School; Universidad Externado de Colombia - Facultad de Derecho; University of Toronto - Faculty of Law; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

February 3, 2017

Boston College Law School Legal Studies Research Paper No. 434 

Abstract:      

Can a constitution be imposed with the consent of the peoples on which it is imposed? The conventional understanding of an imposed constitution — a constitution forced upon a people after war or conquest — rejects this possibility because the very nature of an imposed constitution denies that a community of peoples could divest itself of the power of self-determination associated with democratic constitution-making and -changing. Yet beyond contexts of war and conquest, we may consider constitutions to have been imposed also if they reflect some measure of heteronomy. Heteronomous constitutions are created, governed or adapted directly or indirectly by an external actor. This understanding of an imposed constitution accommodates both the conventional view of a constitution written or administered coercively by a victorious power for a vanquished state after war or conquest as well as those domestic constitutions born not of defeat but controlled in some way by an external actor exercising constitution-level decisionmaking authority. In this paper, I identify three categories of heteronomous constitutions imposed with consent — constitutions that are amended, adjudicated and interpreted by others — none quite the paradigmatic model of an indigenous constitution born of and governed by local actors but each one more a function of self-determined choice than a constitution imposed in war or conquest. Recognizing that a constitution can indeed be imposed with consent complicates our understanding of imposed constitutions and forces us to confront the reality that extraterritorial actors can sometimes be invited to occupy a central place in domestic constitutional law.

Keywords: Imposed Constitutions, Heteronomy, Japanese Constitution, Canadian Constitution, Commonwealth Caribbean, South African Constitution, Grenadian Constitution, Caribbean Court of Justice, Constitutional Amendment, Constitution-Making, Patriation, Colonialism, Global Constitutionalism

Full paper available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2911180

2 March, 2017 "Counter-terrorism: An Exchange of Ideas and Practices Between China and the EU", Scuola superiore "Sant'Anna", Pisa

Scuola Superiore Sant'Anna, Pisa

2 March 2017

Counter-terrorism: An Exchange of Ideas and Practices

Between China and the EU

Full programme here

15 February 2017, "Is EU Administrative Law Failing in Some of Its Crucial Tasks?", Scuola Sant'Anna, Pisa

STALS (Sant’Anna Legal Studies) seminars

www.stals.sssup.it

Within the Jean Monnet Module

“Eur. Publ. ius- European Public Law-ius”

(Scuola Sant’Anna, Pisa)

15 February 2017

Edoardo Chiti

(Università della Tuscia)

Is EU Administrative Law Failing in Some of Its

Crucial Tasks?

Discussants

Marta Simoncini

(University of Antwerp- King’s College, London)

Emiliano Frediani

(Scuola Sant’Anna, Pisa)

Giuseppe Martinico

(Scuola Sant’Anna, Pisa)

15 February 2017

Full programme here

24 January 2017 (time: 11.00-13.00), "The application of the Charter of Fundamental Rights to national measures", Scuola Sant'Anna, Pisa

STALS (Sant’Anna Legal Studies) seminars

www.stals.sssup.it

Within the Jean Monnet Module

“Eur. Publ. ius- European Public Law-ius”

Filippo Fontanelli

(University of Edinburgh)

The application of the Charter of Fundamental Rights to national measures

Full programme here

11 April 2017, 11.00-16.30, "Constitutional Homogeneity and Rule of Law in the European Union: An Interdisciplinary Dialogue"

STALS (Sant’Anna Legal Studies) seminars

www.stals.sssup.it

Within the Jean Monnet Modules

“Eur. Publ. ius- European Public Law-ius” and “The EU’s Responses to the

Challenges of its Neighborhood”

Constitutional Homogeneity and Rule of Law in the European Union: An Interdisciplinary Dialogue

11 April 2017, 11.00-16.30

Scuola Sant'Anna, Pisa

Aula magna storica

Full programme here 

Comparing Judicial Activism – Can We Say that the US Supreme Court is More Activist than the German Constitutional Court?

Nuno M. Garoupa 

Texas A&M University School of Law; Catholic University of Portugal (UCP) - Católica Global School of Law

December 19, 2016

Revista Portuguesa de Filosofia (RPF), Special Issue on Democracy in Question, vol. 72 (4), 2016 

Abstract:    
Although widely used, “judicial activism” is a diffused and, to some extent, an empty concept. However, if it is to be useful in comparative law and politics, a transparent and consistent definition of “judicial activism” has to be developed. We assess different approaches and the consequent comparative implications. We conclude that, at some levels, we can answer whether or not the US Supreme Court is more activist than the German Constitutional Court. Nevertheless, such question cannot be addressed satisfactorily once we understand the complexities of “judicial activism.”

Number of Pages in PDF File: 16

Keywords: judicial activism, constitutional review, constraint, restraint

Full text available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2887650

Convergence, Compatibility or Decoration: The Luxembourg Court's References to Strasbourg Case Law in its Final Judgments

Fan Jizeng 

Scuola Superiore Sant'Anna, Students; Scuola Superiore Sant'Anna di Pisa - Faculty of Law

October 21, 2016

Pécs Journal of International and European Law, 2016, no.2, pp.38-67 

Abstract:      

Although the EU is not a Contracting Party to the European Convention yet, the ECHR and its Strasbourg Case-law do have an impact on the EU legal order. Before the Lisbon Treaty came into effect, the Court of Justice of the EU and the drafters of the Maastricht Treaty recognized that the ECHR and the ECtHR case law had a special significance for the EU legal order and regarded them as one part of the general principle of EU law. The Lisbon Treaty entitles the EU Charter on Fundamental Rights the primary legislation from which the Court could depart in its deliberation. According to Art.53(3) and the relevant Official Explanation, the Court of Justice should take the Strasbourg jurisprudence into account when it needs to define the scope and meaning of fundamental rights borrowed from the ECHR and its case-law. Although the CJEU still lacks a set of uniform rules on the reference to the Strasbourg case-law, and even the European judges motivations on the Strasbourg case-law reference are varied, this method can be regarded as one of the best resolutions on the elimination of the jurisprudential conflicts between the two European Courts. From a functional perspective, the function of the Strasbourg case-law reference can be divided into four categories: authoritative guidance, legitimate guidance, reference “by analogy”, and decorative reference. In particular, the function of legitimate guidance can even be re-divided into three sub-functions: guidance, conformation to legitimacy, and warning the member states against the undermining of the Strasbourg jurisprudence as well as a comparative analysis of similarity and difference between EU law and ECHR.

Number of Pages in PDF File: 30

Keywords: case-law reference, Luxembourg judgments, fundamental rights, comparative law, Strasbourg case law.

Full text available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2884664

¿Pueden Haber Enmiendas Constitucionales Inconstitucionales? Una Mirada Al Derecho Comparado (Can There Be Unconstitutional Constitutional Amendments? A Comparative Perspective)

Joel I. Colón-Ríos 

Victoria University of Wellington - Faculty of Law

2008

42 Rev. Jur. U.I.P. 207 (2008) 

Abstract:    
Spanish Abstract: Este artículo tiene tres objetivos principales. Primero, analizar las bases teóricas de la doctrina de los límites implícitos al poder de reforma. Segundo, examinar las maneras en que dicha doctrina a sido tratada en diversas jurisdicciones (incluyendo Estados Unidos, Alemania, India, y Colombia). Finalmente, considerar la doctrina la luz del ordenamiento jurídico puertorriqueño.

English Abstract: This article has three main objectives. First, to analyze the theoretical bases of the doctrine of the implicit limits to the power of constitutional reform. Second, to examine the ways in which this doctrine has been treated in various jurisdictions (including the United States, Germany, India, and Colombia). Finally, to consider the doctrine the light of the Puerto Rican legal system.



Number of Pages in PDF File: 53

Keywords: Constitutional Law, Comparative Law

Full text available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2883901

Global Constitutionalism - A Critical View

Jaakko Husa 

University of Lapland - Faculty of Law

December 1, 2016

Maastricht European Private Law Institute Working Paper No. 2016/11 

Abstract:    
Drawing on comparative law scholarship this paper discusses global constitutionalism from a critical point of view. Many contemporary authors seem to presume that the idea of constitutionalism must be universal. In agreement with this thinking the commitment to the rule of law, democracy and human rights has arguably become a defining global factor. Allegedly, constitutionalism is regarded as relevant not only in the context of States but also when we assess and interpret development of law beyond the State. This paper analyses underlying themes and calls the universality of global constitutionalism into question.

Number of Pages in PDF File: 19

Keywords: Constitutionalism, Global Law, Globalization, Comparative Law

Full text available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2885490

La Corte Oltre Lo Specchio: Un Dialogo Tra Giudici Costituzionali, Con Sabino Cassese E Daria De Pretis (The Court Through the Looking-Glass - A Dialogue between Constitutional Justices: An Interview with Sabino Cassese and Daria de Pretis)

La Corte Oltre Lo Specchio: Un Dialogo Tra Giudici Costituzionali, Con Sabino Cassese E Daria De Pretis (The Court Through the Looking-Glass - A Dialogue between Constitutional Justices: An Interview with Sabino Cassese and Daria de Pretis)

Giacomo Rugge 

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law

Valentina Volpe 

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law

2016

Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 6/2016 

Abstract:    
Italian Abstract: La seguente intervista ai professori Sabino Cassese e Daria de Pretis, rispettivamente giudice emerito e giudice della Corte costituzionale italiana, si è svolta il 12 novembre 2015 nell’ambito dei Dialoghi Italiani, il discussion group del Max Planck Institute for Comparative Public Law and International Law (MPIL) di Heidelberg dedicato al mondo politico e istituzionale italiano.

L’incontro - in lingua italiana e rivolto a un pubblico di accademici italiani e stranieri - ha seguito il formato della doppia intervista toccando alcuni dei temi più attuali che investono la Corte costituzionale italiana: dalla tutela dei diritti acquisiti all’introduzione della dissenting opinion, dalle dinamiche decisionali interne, al ruolo della comparazione e dei network informali di giudici nell’adozione delle decisioni. Il risultato è stato un vivo scambio d'idee e di opinioni, a tratti convergenti a tratti divergenti, ma sempre alte e preziose per comprendere il vero significato dell’attività della Corte.

Il titolo dell’incontro si è ispirato al seguito di Alice nel Paese delle Meraviglie1, il cui incipit vede Alice domandarsi davanti allo specchio se davvero l’immagine riflessa della stanza corrisponda al vero e cosa si nasconda invece in quello squarcio nascosto alla vista dell’osservatore. Questo dialogo-intervista è nato dalla stessa curiosità di Alice per ciò che si vede e per ciò che non si vede e siamo grati ai giudici costituzionali Sabino Cassese e Daria de Pretis e ai direttori del MPIL, Armin von Bogdandy e Anne Peters, per aver consentito la sua realizzazione, contribuendo a svelare la Corte oltre lo specchio.

English Abstract: The following interview with professors Sabino Cassese and Daria de Pretis, Emeritus Justice and Justice, respectively, of the Italian Constitutional Court, took place on 12 November 2015 as part of Dialoghi Italiani, the discussion group of the Max Planck Institute for Comparative Public Law and International Law (MPIL) in Heidelberg dedicated to examining significant developments in the Italian political and institutional world.

The meeting - held in Italian and addressed to both Italian and international academics - followed the format of a double interview. Focusing on the most relevant issues that affect the functioning and working methods of the Italian Constitutional Court, it touched on the protection of acquired rights, the introduction of the dissenting opinion, internal decision-making dynamics and the role of comparison and informal networks of judges in the decision-making process. The result was a lively exchange of ideas and opinions - at times convergent, at times divergent - but always highly informative and precious for an understanding of the true nature and role of the Court.

The title was inspired by the sequel to Alice in Wonderland, whose incipit depicts Alice standing in front of a mirror, wondering if the reflection of the room she sees indeed corresponds to reality and what lies beyond her view. This dialogue-interview originated from the same curiosity that inspired Alice to ponder what she saw and what the mirror did not reveal.

Note: We are grateful to Justice Sabino Cassese and Justice Daria de Pretis as well as to the Directors of the MPIL, Armin von Bogdandy and Anne Peters, for allowing us to conduct this interview and thus observe the Court through the looking-glass.

Downloadable document is available in Italian.

Number of Pages in PDF File: 19

Keywords: Italian Constitutional Court, constitutional justice, comparative law, dissenting opinion

Full text: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2865686

Mayoral, In the CJEU Judges Trust: A New Approach in the Judicial Construction of Europe JCMS

In the CJEU Judges Trust: A New Approach in the Judicial Construction of Europe

Juan A. Mayoral

This article aims to highlight the relevance of judicial trust in international courts, focusing on national judges' trust in the Court of Justice of the European Union (CJEU). EU scholars have put a great deal of effort into explaining how legal and political factors affect the use of preliminary references by national courts. However, there is still a gap in the literature on the development of trust as a functional principle encouraging co-operation between national and international courts. This article explores the nature, causes and potentials of judicial trust for the EU judicial system. A theory is offered in the article, which links national judges' trust in the CJEU to their corporatist identification and profile, to their attitudes towards the EU, and to their beliefs about the CJEU's ability to provide decisions that: 1) offer a clear guidance on European Union law, and 2) will not undermine Member States' legal order.

http://onlinelibrary.wiley.com/wol1/doi/10.1111/jcms.12488/abstract

STALS Newsletter

Dear friends and colleagues,

we are pleased to announce the contents of this new STALS newsletter.

Stals Research Papers

F. Masini, “Towards a Federal Structure of Economic Governance in the Eurozone”, STALS Research Paper 1/2016, http://www.stals.sssup.it/files/masini%20stals.pdf 

M. Kölling , ”The EU budget - from a bargaining tool to a federal budget?”, STALS Research Paper 2/2016, http://www.stals.sssup.it/files/koelling%20stals.pdf 

STALS events

29 September 2016

“A genealogy of public security: the theory and history of modern police powers”

http://stals.sssup.it/files/campesi.pdf

4 November  2016

 “Crisi dell'euro e conflitto sociale. L'illusione della giustizia attraverso il mercato”

http://stals.sssup.it/files/guazzaeuro.pdf

1 December 2016

“Il principio dei best interests of the child: un dialogo”

http://stals.sssup.it/files/lamarque.pdf 

New Projects

European Public Law-ius (Eur.Publ.ius) 574669-EPP-1-2016-1-IT-EPPJMO-MODULE

http://www.santannapisa.it/it/ricerca/progetti/jean-monnet-module-european-public-law-ius-eurpublius 

All the best from Pisa,

the Editors

Brexit and the Future of the United Kingdom

Brexit and the Future of the United Kingdom

 Etain Tannam

ABSTRACT

This paper aims to assess the significance of Brexit for the future of the UK as a unitary state and to identify various possible outcome to the future of the UK. The first part provides an overview of the current status of Scotland and Northern Ireland in the UK and the differences between both

cases. The second part of the article assesses the significance of the EU for the devolved administrations and analyses key party responses to the Brexit debate in Scotland and Northern

Ireland. In conclusion the impact of Brexit on the future of the UK as unitary state is assessed.

Full text available at:

http://www.iai.it/sites/default/files/iaiwp1616.pdf

What is Judicial Supremacy?

Stephen Gardbaum 

University of California, Los Angeles (UCLA) - School of Law

September 8, 2016

in Comparative Constitutional Theory (Gary Jacobsohn & Miguel Schor eds., Elgar Publishing), Forthcoming 

UCLA School of Law, Public Law Research Paper No. 16-39 

Abstract:      

Judicial supremacy is a concept frequently employed in both domestic and comparative constitutional theory but rarely carefully defined and systematically analyzed. Scholars typically either assume its meaning or quickly state how they are using the term before warming to their major theme, focusing on some other aspect of judicial supremacy: how did it emerge, what explains its acceptance by other branches of government, is it or should it be tempered in practice by courts not straying too far from the popular will, is it a good, bad, or practically necessary feature of a constitutional system? Jeremy Waldron's observation that the term has "no canonical definition" suggests that it is not always used in uniform fashion but rather in somewhat different ways in different contexts. Moreover, this range of uses helps to explain why, on only slightly closer inspection, various critics or skeptics of "judicial supremacy" around the world ― departmentalists, "hollow hopers," constitutional dialogists ― do not all seem to be making the same point, but appear to be interlocutors in a number of discrete conversations, differing in both the type and content of their arguments and the positions they are marshaled to support.

This chapter attempts to provide the systematic analysis of the concept that is mostly missing and that is a prerequisite for understanding and assessing the several debates in which it plays a central role. It also aims to evaluate its usefulness as a concept in the toolbox of comparative constitutional theory. Part II identifies and disaggregates four distinct senses or conceptions of judicial supremacy in the relevant literatures, what I shall refer to as "interpretive," "attitudinal," "decisional," and "political supremacy" respectively. It also shows that corresponding to each of the meanings is a distinct opposing or skeptical position. Part III illustrates the multiple meanings by looking at recent resolutions of the same-sex marriage issue by different institutions and mechanisms ― courts, legislatures, popular referenda, courts and legislatures ― in many constitutional systems over the past decade. Part IV attempts to asses the utility of judicial supremacy as a concept in comparative constitutional theory by asking what and how much is at stake in the debates between each conception and its critics. The chapter concludes that, as delimited by the four senses identified, although not as sometimes exaggerated or conflated, it is indeed a useful, non-unitary concept. Its essential status in the field, however, likely turns on further comparative experience.

Number of Pages in PDF File: 38

Keywords: Judicial Supremacy, Departmentalism, Constitutional Interpretation, Same-Sex Marriage, Political Empowerment, Weak-Form Judicial Review, Comparative Constitutional Theory

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2835682