Yale Law School Global Constitutionalism Seminar, E-Book Volumes 1-5, 2016

461 Pages Posted: 5 Dec 2016 Last revised: 23 Jan 2017

See all articles by Judith Resnik

Judith Resnik

Yale University - Law School

Rosalie Abella

Supreme Court of Canada

Marta Cartabia

Constitutional Court of Italy

Manuel Cepeda-Espinosa

Constitutional Court of Colombia

Brenda Hale

Supreme Court of the United Kingdom

Amy Kapczynski

Yale University - Law School

Helen Keller

European Court of Human Rights

Harold Hongju Koh

Yale Law School

Douglas A. Kysar

Yale University - Law School

Douglas NeJaime

Yale University - Law School

Robert Post

Yale Law School

András Sajó

European Court of Human Rights

Reva Siegel

Yale University - Law School ; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Patrick Weil

Yale University - Law School

John Fabian Witt

Yale University - Law School

Date Written: 2016

Abstract

For the first time, five volumes of constitutional case law and commentary provided for the seminar on Global Constitutionalism (a Part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School have been published to enable open access. The five chapters in the 2016 Volume, Acts of State, Acts of God, address Sovereign Immunity of Foreign States and Their Officials (exploring when and how courts respond to claims of horrific wrongdoing conducted in the name of the state); Prisons, Punishments, and Rights (focusing on the relationship between the law of sentencing and the law of prisons, including why and when courts have a role to play in deciding the forms that punishment takes); Constitutional Emergencies (tracking debates about the judicial role in responding to crises in the environment, public health, the economy, and when proposing to exile citizens); Religious Accommodation and Equality (examining claims that religious belief should permit deviation from legal duties required of other members of the polity through generally applicable laws); and Blasphemy and Religious Speech (evaluating how commitments to freedom of expression either constrain or license state responses to blasphemy, defined as speech that violates the dignity of God and more recently speech that violates the dignity of religion and religious groups).

Also just published is the volume, The Reach of Rights, focusing on the crossing of borders — by migrants searching for safety, by internet technologies disseminating information, by governments seeking to enhance national security, and by courts analyzing legal claims and crafting remedies. Its chapters include Migrants, Citizens, and Status (with cases addressing claims of non-nationals challenging the power of nation-states to make migration a crime; to disrupt citizen-families through deportation; to link access to health, welfare, and employment to citizenship status; and to discriminate in the distribution of benefits among kinds of migrants); Constitutional Rights to State-Subsidized Services (exploring governments’ relationship to individuals in the context of “social rights” and individuals asking courts to mandate that governments provide services as a constitutional imperative); The EU, the ECHR, Constitutional Pluralism, and Federations (reviewing the Court of Justice of the European Union’s (CJEU’s) 2014 ruling that the draft European Union (EU) accession agreement to the European Convention on Human Rights was not compatible with EU law and more generally issues of constitutional pluralism and the interactions among courts in federated and quasi-federated states); Extraterritoriality and Human Rights (considering how fundamental rights alter the obligations of nation-states to individuals, within and beyond their borders); and Extraterritoriality, Privacy, and Security (analyzing CJEU’s 2014 ruling on “the right to be forgotten”).

A third volume, Sources of Law and of Rights, includes chapters on Surveillance and National Security (exploring how the intersection of new technologies and concerns for national security affect constitutional commitments to privacy); Religion as a Source of Law (looking at whether claims of right sourced in religion have a distinctive status in constitutional democracies); Judicial Enforcement of International Human Rights (asking about whether and how international human rights are incorporated in national and supranational jurisprudence); Equality in Democracy: Legislatures, Courts, and Quotas (exploring efforts in many jurisdictions to make good on the promise of equal citizenship through measures known as “positive action,” aiming to promote the inclusion of groups that have historically been disadvantaged); and Constitutional Constraints on the Power to Punish (considering whether and how constitutions place boundaries on sentencing decisions crafted by legislative and executive branches and imposed by judges).

The fourth volume, Governments’ Authority, takes up several interrelated questions of courts’ roles in constitutional orders. Its chapters include Unconstitutional Constitutional Amendments (with case law from many jurisdictions on how and why constitutional amendments can be “unconstitutional”); Puzzles of State Identity, Privatization, and Constitutional Authority (looking at governments’ decisions to outsource some of its activities — either to private entities or to other governments); Privatization and Regulation (presenting another aspect of the public/private mélange, namely the outsourcing of executive, legislative, and judicial functions, including policy-making, decision-making, and standard-setting); Innovation in Public Law Remedies (analyzing innovative remedies that courts have shaped in response to constitutional failures of other branches of government); and The Enforcement of International Law, (analyzing enforcement of international law and the role of courts in interpreting and implementing international obligations).

The fifth volume, Law’s Borders, raises fundamental questions about the contours and content of law in times of war and in times of peace, including which national, transnational, and international institutions have what authority to make decisions for and determine the rights of individuals. Its chapters include Targeting, Detention, and Punishment: Problems in the Relationship of War and Crime (with cases on “targeting” individuals that a country perceives to be its enemies, and exploring how parallel the rules governing the detention of opponents in war ought to be to the prosecution of criminals in peacetime); (Dis)uniformity of Rights in Federations and Unions (looking at when subnational rules — on abortion or prisoner voting, for example — are permitted to vary from the larger regime through doctrines such as the margin of appreciation); Constitutional Pluralism and Constitutional Conflicts (also looking at conflicts, tensions, and coordination among courts and the autonomy and interdependences); International Investment Law and Arbitration Amidst Global Change (reflecting on the development of diverse institutions regulating transnational actors and mediating conflicts); and Future(s): The Sustainability of Transnational, National, and International Courts (with critical commentary on the plausibility and desirability of international, transnational, and comparative law).

Keywords: global, constitutionalism, constitutional law, jurisprudence, procedure, civil, criminal, international law, courts, judges, judicial review, rights, liberties, human rights, sentencing

Suggested Citation

Resnik, Judith and Abella, Rosalie and Cartabia, Marta and Cepeda-Espinosa, Manuel and Hale, Brenda and Kapczynski, Amy and Keller, Helen and Koh, Harold Hongju and Kysar, Douglas A. and NeJaime, Douglas and Post, Robert and Sajó, András and Siegel, Reva B. and Weil, Patrick and Witt, John Fabian, Yale Law School Global Constitutionalism Seminar, E-Book Volumes 1-5, 2016 (2016). Yale Law School Global Constitutionalism Seminar, E-Book Volumes 1-5, 2016; UCLA School of Law, Public Law Research Paper No. 16-56; Yale Law & Economics Research Paper No. 566; Yale Law School, Public Law Research Paper No. 590. Available at SSRN: https://ssrn.com/abstract=2869857

Judith Resnik (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)

Rosalie Abella

Supreme Court of Canada

Canada

Marta Cartabia

Constitutional Court of Italy ( email )

Italy

Manuel Cepeda-Espinosa

Constitutional Court of Colombia

Brenda Hale

Supreme Court of the United Kingdom

Parliament Square
London, SW1P 3BD
United Kingdom

Amy Kapczynski

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Helen Keller

European Court of Human Rights

Strasbourg, Alsace region
France

Harold Hongju Koh

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
2034321660 (Phone)

Douglas A. Kysar

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Douglas NeJaime

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Robert Post

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

András Sajó

European Court of Human Rights

Strasbourg, Alsace region
France

Reva B. Siegel

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

Patrick Weil

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

John Fabian Witt

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4944 (Phone)

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