Article: The Use of Foreign Decision by Constitutional Courts – A Comparative Analysis

SSRN has posted an article on the use of foreign law by constitutional and supreme courts. The author looks at the use of foreign law in constitutional law cases by courts in Australia, Austria, Canada, France, South Africa,  and Switzerland. The article is only available in Spanish.

The Use of Foreign Decision by Constitutional Courts – A Comparative Analysis

Rodrigo Brito Melgarejo

In Dret, Volume 2 (2010)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1639031

http://www.indret.com/pdf/720_es.pdf

Abstract:

Despite the relevance of comparative law in constitutional adjudication has repeatedly been at the center of heated debates, in recent years, an increasingly transnational constitutional dialogue between justices has developed in many countries. Some members of a large number of constitutional courts have embraced the possibility of considering the constitutional decisions of other nation’s courts because the potential benefits of comparative constitutional learning are many. Considering other national court decisions or explaining disagreements with them, for example, may stimulate judges to rethink principles or priorities in ways that alter their own constitutional perspective and to find new valuable arguments that renew its own stock of constitutional ideas.

This paper aims at analyzing the way some constitutional courts are using foreign decisions in constitutional interpretation and tries to demonstrate that comparative constitutional reasoning tends every day more vigorously to universality.

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/

Report on Nepal’s New Draft Constitution

NYU School of Law’s Center for Human Rights and Global Justice has released the following report:

Rights Within Reach: Securing Equality and Human Rights in Nepal’s New Constitution
http://www.chrgj.org/projects/docs/rightswithinreach.pdf

From the report’s conclusion:

Ending centuries of caste-based discrimination and ensuring Dalit rights in both public and private spheres must be a central feature of Nepal’s long awaited social, political, and economic transformation.

The new Constitution will serve as the basis for the development and enforcement of legislative, administrative, budgetary, judicial, and educational measures that are necessary to secure this transformation. The drafting of the new Constitution presents the Constituent Assembly with the profound opportunity to demonstrate Nepal’s commitment to human rights and to affirm the inherent dignity of all individuals. Many of the Thematic Committees’ proposals for the new Constitution take significant steps toward meeting these goals. However, as noted throughout this Statement and the accompanying Chart, in order for Nepal to meet its human rights obligations, certain revisions to the proposals are needed. In addition, rights that are not currently reflected in the proposals must be included and guaranteed. CHRGJ strongly encourages members of the Constituent Assembly to consider these recommendations as they deliberate on and draft the new Constitution.

Book: French-American Network for the Internationalization of Law

The Januray 28th issue of Recueil Dalloz includes an interview in French with Professor Mireille Delmas-Marty discussing her work with the French-American Network for the Internationalization of Law; there are also Franco-Brazilian and Franco-Chinsese networks. In the interview she mentions a book she edited with Justice Stephen Breyer.

Regards croises sur l’internationalizaation du droit: France-Etat-Unis

Paris : Société de législation comparée, 2009

ISBN: 978-2-908199-79-6
http://www.lgdj.fr/colloques-etudes-rapports/229059/regards-croises-internationalisation-droit-france-etats

 Interview citation:

Le réseau internationalisation du droit: entretien trois questions a Mireille Delmas-Marty.

Recueil Dalloz 2010 #4/7409  page 248.

Article: Public Interest Law in Contemporary Latin America

Article available on SSRN:

Staying Alive: Public Interest Law in Contemporary Latin America

Stephen Melli

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1518002

Abstract:

This paper explores the current state of public interest lawyering in three Latin American countries: Argentina, Brazil and Chile. Based on a series of open-ended interviews with lawyers, judges and social movement activists, it compares public interest lawyering in these countries now with how it was practiced when the author interviewed some of the same individuals in the early to mid 1990s. Its analysis is set within the context of important geopolitical and socio-legal phenomena: the current global economic crisis and the judicialization of politics and constitutionalization of rights that has swept across the region over the past two decades. The paper explores how these developments have influenced public interest lawyers, particularly in their interactions with various social movements. It also highlights the opportunities and challenges that these developments pose for public interest lawyers throughout Latin America.

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 

Cambodian Legislation in English

The Center for Social Development in Phnom Phen has posted unofficial English translations of a few Cambodian statutes, including the constitution. Examples include land law, lawyer status law, criminal procedure law, and  law on  press regime.

Center for Social Development – National Legal  Instruments

http://www.csdcambodia.org/bld.html

 

 

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