Urgency and Legitimacy: 2021 Volume of Yale's Global Constitutionalism Seminar, a Part of the Gruber Program for Global Justice and Women's Rights

316 Pages Posted: 22 Dec 2021

See all articles by Judith Resnik

Judith Resnik

Yale University - Law School

Daphne Barak-Erez

Israeli Supreme Court

Marta Cartabia

Constitutional Court of Italy; Bocconi University - Department of Law

Linda Greenhouse

Yale Law School

Ivana Jelic

European Court of Human Rights

Rosalie Abella

Supreme Court of Canada

Muneer I. Ahmad

Yale Law School

Susanne Baer

Humboldt University of Berlin

Daniel Markovits

Yale Law School

Timothy Snyder

Yale University - Law School

Manuel Cepeda-Espinosa

Constitutional Court of Colombia

Date Written: December 16, 2021

Abstract

The title of this year’s volume, Urgency and Legitimacy, reflects the world we inhabit, in which jurists have been faced repeatedly with arguments that emergencies require rethinking constitutional norms and practices. We compiled this volume as the COVID-19 pandemic, protests, uprisings, and violent assaults were underway. As the materials also reflect, this era is one of many for which the word “urgency” is sadly apt, and in which questions of justice and legitimacy haunt courts.

We begin (as George Eliot explained, all narratives do) in medias res, as we continue the discussion of COVID-19 in the Law. Last year, we focused on the effect of the pandemic on the functioning of courts. We turn now, in a session led by Daphne Barak-Erez and Marta Cartabia, to consider a few of the many legal issues raised by the hundreds of lawsuits challenging aspects of responses by governments to COVID-19. As the disease spread, people objected to a variety of state actions as well as to a lack of action. Litigants, challenging executive branch decisions, have asserted harms to individual liberty, privacy, and autonomy as well as to collective interests in education, religious observance, and economic vitality. Courts have probed defences by governments that exceptional needs license their actions; doing so required judges to assess the quality and nature of scientific information as it changed over time and the inequalities that lace society and resulted in differential impacts of decisions made by governments.

Just as COVID-19 has framed the last two years, the terrorist attacks of September 11, 2001 captured the world’s attention twenty years earlier. The chapter Two Decades After 9/11: The Judicial Response to Terrorism from Within and Without explores how those events affected debates among judges, courts, and theorists about the role of courts in regulating efforts to deal with national security. Edited by Linda Greenhouse, Ivana Jelić, and Rosalie Silberman Abella, the materials examine the responses of jurists, sometimes deferring to the judgments of the political branches and sometimes applying their own judgment on what rule-of-law principles and individual rights require. Courts have weighed government arguments that threats to democratic institutions and national security justify the intrusions on liberty. Judges also havebeen heard government arguments that courts lack the authority or the competency to assess threats, as well as that judicial evidentiary and decision-making procedures themselves increase the risk of harm.

The third chapter, Encountering Protest, maps the relationship of courts to another vector of our current experiences—the turn to the streets and to the internet to galvanize individuals and communities to call for, and at times to insist on, change. Some of the action in the streets is celebratory and at other times it is angry and violent. The discussion, with Muneer Ahmad and Susanne Baer at the helm, explores protest movements, past and present, to assess the roles that courts have played in constraining, enabling, and policing protest. At times, jurists have recognized the legitimacy of protests and have insisted on protection. On other occasions, courts have joined in suppressing or rendering protests invisible. Moreover, in some eras, judges are the protestors—calling for re-evaluation of what law ought to condone or condemn.

The fourth chapter, Extremes, Democracy, and the Rule of Law, edited by Daniel Markovits, Timothy Snyder, and Manuel José Cepeda Espinosa, continues the discussion of contemporary conflicts through focusing on clashes over political and economic power, as individuals and groups aim to control the state or to escape the reach of government regulation. Some democratic orders have constitutional mandates that authorize oversight and exclusion of certain kinds of political actors, while other governments argue that doing so undermines democratic tenets. Extreme wealth has often eluded control even as such resources are regularly deployed to overwhelm, dilute, or replace democratic politics. Once again, judges interrogate their own roles when they consider whether and how to buffer democracies.

Suggested Citation

Resnik, Judith and Barak-Erez, Daphne and Cartabia, Marta and Greenhouse, Linda and Jelic, Ivana and Abella, Rosalie and Ahmad, Muneer I. and Baer, Susanne and Markovits, Daniel and Snyder, Timothy and Cepeda-Espinosa, Manuel, Urgency and Legitimacy: 2021 Volume of Yale's Global Constitutionalism Seminar, a Part of the Gruber Program for Global Justice and Women's Rights (December 16, 2021). Urgency and Legitimacy 2021, Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3987507

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)

Daphne Barak-Erez

Israeli Supreme Court ( email )

Sha'arei Mishpat
Jerusalem, 91909
Israel
011 972 3 6056159 (Phone)
011 972 3 5445538 (Fax)

Marta Cartabia

Constitutional Court of Italy ( email )

Italy

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

Linda Greenhouse

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-2514 (Phone)

HOME PAGE: http://www.law.yale.edu/faculty/LGreenhouse.htm

Ivana Jelic

European Court of Human Rights ( email )

Strasbourg, Alsace region
France
+33 (0) 3 88 41 36 70 (Phone)

Rosalie Abella

Supreme Court of Canada

Canada

Muneer I. Ahmad

Yale Law School ( email )

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

Susanne Baer

Humboldt University of Berlin ( email )

Unter den Linden 6
Berlin, AK Berlin 10099
Germany

Daniel Markovits

Yale Law School ( email )

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

Timothy Snyder

Yale University - Law School ( email )

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

Manuel Cepeda-Espinosa

Constitutional Court of Colombia

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