Article: The Common Law and the Constitution as Protectors of Rights in Australia

Interesting article comparing fundamental rights, judicial review, and  parliamentary supremacy in Australia, the United States, Canada, New Zealand, and Britain.

The Common Law and the Constitution as Protectors of Rights in Australia

Anthony Gray (University of Southern Queensland)

39 Common Law World Review 119 (2010)

Available online via LexisNexis.

New café, jaunty carpet with Supreme Court Attached

Times of London has published its law student winning essay on the new UK Supreme Court and British constitutional law.

New Café, Jaunty Carpet with Supreme Court Attached. Supreme Court UK: radical change or business as usual?

Anita Davies, law student at City University

http://business.timesonline.co.uk/tol/business/law/student/article7057610.ece

Excerpts from the article:

H.W.R Wade, in his 1955 article The Basis of Legal Sovereignty, stated that Parliamentary sovereignty based its legitimacy upon political fact and could be changed only by revolution. In his 1996 article Sovereignty — Revolution or Evolution? he argued that such a revolution, albeit a quiet one, had indeed taken place.

In recent years judges have been increasingly assertive in recognising the possibility that there may be times when it is valid for the courts to challenge Parliament. In the 2005 fox hunting case, Jackson v Attorney-General, Lord Steyn referred to the possibility of “constitutional fundamentals”, which even a sovereign parliament could not abolish.

Seen in this light, the opening of the Supreme Court is a symbolic recognition that the framework of constitutional and political debate has already shifted to a considerable extent. There is little doubt that the new name and location will have an effect on the role of the newly appointed judges, it would be extraordinary if it did not.

But the tools they use to fulfil their role, and potentially exercise judicial authority more assertively, have existed for some years. The pleasing new symmetry of Parliament Square has been referenced by a number of commentators; justice on the one side, government on the other and Westminster Abbey facing both. This new layout can also be seen as symbolic of an evolving legal order best described by Dawn Oliver; where Parliament is “no longer at the apex of a simple hierarchy of simple legal norms” but at the centre of a web of developing relationships between different laws and rules from various sources.

Ley.mx

Our friends at Justia have released Ley.mx, a portal of Mexican statutes and regulations. The site includes federal and state constitutions, codes, statutes, and regulations. Materials are available in HTML and Pdf formats. The Web site also posts legal news alerts and has useful links to u publications, law schools, and law firms.  Along with UNAM’s Unidad de Documentación de Legislación y Jurisprudencia, Ley.mx offers another free portal to Mexican primary legal resources. Many thanks to the folks at Justia for all their excellent work.

Ley.mx

http://www.ley.mx/

Law and Legal Culture in Venezuela in Revolutionary Times (1999-2009)

Professor Rogelio Pérez-Perdomo has just published on SSRN a Spanish language article on the Venezuelan legal system during the last decade. 

Law and Legal Culture in Venezuela in Revolutionary Times (1999-2009)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1513568

Abstract:     
The paper analyzes changes in the constitution, law and legal culture in Venezuela under the presidency of Hugo Chavez. In this period the main function of the constitution has been to express the political project of those in power. The 1999 constitution reflected a mixed project of democracy and socialism. Beginning in 2002 the government strengthened its socialist-authoritarian nature. This produced the need to change the constitution, as it was attempted in 2007. This attempted was defeated and the government introduced the changes trough legislation, profiting its tight control of the National Assembly. In 2009 the government won a referendum suppressing the limits for reelection of the President of the Republic, a part of the refused reform of 2007. The constitution and the legal system have become instruments for the actual implantation of a socialist regime in the country. All the branches of public power are controlled by Chavez and all contributed to his socialist project. The paper describes the way the legislation has been dominated by the executive branch and how the judges have become part of the political apparatus of the state. 

Note: Paper in Spanish 

Last days of the Law Lords

July 31, 2009  is the last day that the law lords will work at the House of Lords. The new UK Supreme Court should be up and running soon in the fall.  Curiously, with the end of the House of Lords’ judicial function, the U.S. Supreme Court is now one of the oldest  unchanged courts of last resort.

Coverage of the end of the era for the Law Lords

From Law Lords to Supreme Court http://news.parliament.uk/2009/07/from-house-of-lords-to-supreme-court/ 

Farewell to the law lords http://business.timesonline.co.uk/tol/business/law/article6731018.ece?&EMC-Bltn=BGLA5B

House of Commons Report on Constitutional Reform & Renewal , July 2009 http://www.publications.parliament.uk/pa/cm200809/cmselect/cmjust/923/923.pdf

A Potted History of the Law Lords http://news.bbc.co.uk/2/hi/uk_news/8176958.stm

Chinese Labor Legislation in English

China Labor Watch, a New York based NGO, posts English language translations of Chinese labor and employment statutes and regulations, as well as the constitution and some local Shanghai regulations. These are unofficial versions.

Examples of statutes and rules available:

Trade Union Law

Labor Law

Law of Assemblies, Processions and Demonstrations

Regulations of the Compositionof Gross Wage

China Labor Watch

http://www.chinalaborwatch.org/index.htm

click on the “Labor Law” icon.

Report on the legal and constitutional powers of the Privy Council

Justice, a UK human rights NGO, has published a report on the legal and constitutional powers of the UK’s Privy Council.

The Constitutional Role of the Privy Council and the Prerogative

Patrick O’Connor QC, Doughty Street Chambers

http://www.justice.org.uk/inthenews/index.html

Excerpts from the Report and Summary Conclusions

Tracing its origin back to the twelfth or thirteen century, its continued existence, if considered at

all, is regarded as vaguely charming and largely formal. But, as the vehicle that dispossessed

those living on or near Diego Garcia, the Privy Council can still display the power that once it

had more widely as an instrument of feudal rule.

 

This paper examines the history, development and current role of the Privy Council. It will try to

throw light upon its procedures and practices and ask what role can be played in a modern

21st century constitution by such a body. Constitutional reform is in the air. Can a new spirit of

transparency and democratic accountability penetrate even as far as the Privy Council? Is the

Privy Council robust enough to safeguard the real public interest in a national emergency? On

the other hand, is it a weak point, a tempting resource for evading democracy in a crisis? Is such

a body necessary at all? What role should the ‘prerogative powers’ play? Are they controlled, or

even controllable?

The Privy Council matters. It provides an avenue by which the executive can evade the scrutiny of

Parliament and create immediately effective laws. It perpetuates fictions which conceal the reality of the

exercises of power. It is at the heart of our outdated culture of deference.

 

The Privy Council is a dysfunctional body. There is no rationale which can justify the eclectic range of

its work. It currently ranges from being in part ‘synonymous with government’, to an independent court: from

a forum for the monarch’s real remaining personal prerogative powers, to a theatre for benign historic

ceremonial. This has all arisen by historical accident, and has never been analysed rationally. The repeated

reference to an ‘advisory’ role, and the absence of any acknowledgement that the PC is a vehicle for the

direct exercise of constitutional powers is less than transparent. This is the most important of the many

fictions surrounding the PC, cloaked in a fog of outdated language

New Bolivian Constitution

Bolivian voters approved a new constitution in a national referendum on Sunday, January 25. This constitution should be of interest to students of Latin American law, indigenous rights, minority language rights, and sustainable development law.

Full-text (Spanish)  of the new Constitution can be found here:

http://www.cne.org.bo/proces_electoral/RefConstitucion2009/documentos/TextoCPE.pdf

http://www.cne.org.bo/proces_electoral/RefConstitucion2009/textos.aspx

New York Times article on the constitutional referendum:

http://www.nytimes.com/2009/01/26/world/americas/26bolivia.html?ref=world

i.lex – Legal Research System for International Law in U.S. Courts

The American Society of International Law (ASIL) has released its i.lex database of U.S. case law interpreting international law. Here is the description of the database from ASIL’s Web site:

This online database of select U.S. court cases and related materials is designed to serve as a practical resource for members of the judiciary and other legal professionals to identify and understand how international law is interpreted and applied by U.S. courts at both the federal and state level.

i.lex is not intended to serve as a comprehensive source of case law incorporating international law into the U.S. legal system. Rather, it offers users access to the most important cases involving particular areas of international law such as human rights, refugee and asylum law, diplomatic and consular relations, transportation and communication, trade and transactions, and more.

i.lex provides pdf versions of the opinions, as well as case summaries and brief anaylsis of a decision’s significance. One can search by keyword, topic, treaty or statute. The database includes both state and federal cases. Best of all, the folks at ASIL are not charging for this database.  Thanks ASIL.

i.lex Legal Research System for International Law in U.S. Courts

http://ilex.asil.org/

Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System

Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System

Marquette Law Review, Vol. 92, 2009
NSU Shepard Broad Law Center Research Paper No. 08-012

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

 

Unpublished opinions have become a fact of life in the federal circuit courts. Over eighty percent of all opinions issued by the federal circuits in the last few years have been designated “unpublished.” The meaning of that designation has changed, however, since the birth of the limited publication plans. In the mid-1970s, the federal circuits adopted plans that sought to make some of their decisions unpublished, uncitable, and even non-precedent. That system has unraveled. Unpublished decisions are now routinely published in both commercial and public databases. Federal Rule of Appellate Procedure 32.1 now makes these decisions citeable. What remains is the most critical issue – whether denying these decisions’ precedential weight is Constitutional. This issue was never addressed directly when the circuits’ limited citation plans were put into place; it was viewed as a “morass of jurisprudence” that was better off avoided. Yet, several potential Constitutional infirmities with the practice of declaring some opinions non-precedential have been identified. This is ultimately an issue to be determined by the Supreme Court.

This article, Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, examines the Supreme Court jurisprudence on this issue. It examines what the Court has ruled, what petitioners have argued, and what individual Justices have stated in scholarly writings and separately written opinions. The Court has never accepted the circuits’ assertion that these cases lack precedential value, but neither have they granted certiorari and addressed the issue directly. The Constitutionality of denying unpublished decisions precedential value is ripe for Supreme Court review. Given the fundamental nature of the issue, litigants ought to vigorously seek certiorari and the Court should grant it.

 

Source:  LSN Law & Courts Vol. 2 No. 55,  09/29/2008