This article examines how private law has been displaced across four South Asian: India, Pakistan, Bangladesh, and Sri Lanka. As courts in these jurisdictions have recognized a greater number of rights within the sphere of public constitutional law, there has been a corresponding displacement of private law. Indeed, some areas of private law, such as...
Tag: <span>WEDNESDAY JUNE 27 2018 10:45 AM – 12:15 PM</span>
Due Process Under Extreme Conditions: Burdens, Deference and the Judicial Function
In exercising judicial review in times of crises courts face a well-known dilemma: to defer or not to defer? Deference is prudent: The executive/legislature are better equipped to deal with emergencies swiftly and efficiently, as they possess the expertise, the wherewithal, and bear the responsibility for error. Exercising strict review may derail the governmental efforts...
Each Conscience A Law Unto Itself? Religious Accommodation in the U.S. and Germany
This paper compares the US Supreme Court‘s and the German Constitutional Court‘s approaches to religious accommodation. The US Court does not usually require the state to accommodate people through religious exemptions. I argue that Scalia‘s critical view of accommodations followed from the political philosophy of Locke that was especially influential at the time of the...
European constitutional courts towards data retention laws
One of the most commonly applied measures to combat terrorism is a mechanism of telecommunications data retention. Serious doubts regarding its intrusive nature were raised. State authorities being in possession of traffic and location metadata may monitor social behavior of individuals, detect sources (journalism) or political opponents. Our paper explores constitutional limits for legislative interference...
Feminism and Family Leave
This Essay explores the dynamics between parental leave policies and the enforcement of legal equality in the United States and other jurisdictions. In so doing, it clarifies and redefines a feminist jurisprudence of family leave. A feminist approach to family leave should advance a substantive vision of gender equality, ‘a more egalitarian relationship at home...
Policy and Procedure in the Age of Personalized Foreign and Security Policy
This paper explores the dynamic between courts and policymakers in the areas of foreign affairs and national security through an empirical study of the targeted sanctions jurisprudence of the EU courts. It draws on an original dataset that includes judicial decisions reviewing 204 individual sanctions imposed under the EU Iran and Syria sanctions regimes, as...
Foundations of Majority Rule and its Application to Constitutional Courts
One of the most salient features of many constitutional democracies is the existence of constitutional courts that can control the constitutionality of statutory legislation. In order to decide whether to invalidate statutory provisions as unconstitutional, most constitutional courts use majority rule. In this paper, I argue that the main justifications provided for majority rule as...
Friend and Enemy Revised: Derrida and The Politics of Friendship
In one of his most famous book, Der Begriff des Politischen, Carl Schmitt wrote that the one of the essential debate on political refers to the differentiation between friend and enemy. This affirmation has been repeated over the decades. Nonetheless, Jacques Derrida has demonstrated a crucial mistake on Schmitt’s notion of the political. In his...
From ‘Old Wounds‘ to Constitutional Uncertainty – Addressing the Impact of Brexit on Northern Ireland
The impact of the UK‘s exit from the EU – Brexit – is likely to be felt in Northern Ireland in a unique way. The Good Friday Agreement, ending the decades-long ‘Troubles‘ era, is presaged on mutual recognition of standards and free movement of goods, people and services between Northern Ireland (as part of the...
From Gender Recognition to Transgender Discrimination – Addressing Essentialism and Assimilationism in the Law
How should official documents record the sex/gender of transgender people? Should transgender women be able to access female bathrooms? In the United Kingdom and the European Court of Human Rights, the law has often dealt with such issues through the lens of “gender recognition“, that is, on what criteria should the law recognise the gender...