CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, January 3, 2018

Rodriguez et al. on Reconstituting Constitutional Orders

Cristina RodriguezManuel Cepeda-EspinosaHarold Hongju KohDieter GrimmThe Hon. Frank IacobucciClare RyanMiguel Poiares MaduroKim Lane ScheppeleKate StithMarta CartabiaTracey L. MearesTom TylerCarlos Rosenkrantz and Judith Resnik (Yale Law School, Constitutional Court of Colombia, Yale Law School, Wissenschaftskolleg zu Berlin, Government of Canada - Supreme Court of Canada, Yale University, European University Institute, Program in Law and Public Affairs, Princeton University, Yale University - Law School, Constitutional Court of Italy, Yale University - Law School, Yale University - Law School, University of San Andres and Yale University - Law School) have posted Reconstituting Constitutional Orders (2017 Volume of Yale's Global Constitutionalism Seminar, a Part of the Gruber Program for Global Justice and Women's Rights, Yale Law School) on SSRN. Here is the abstract:
The 2017 volume of Yale's Global Constitutionalism Seminar, a part of the Gruber Program for Global Justice and Women's Rights, Reconstituting Constitutional Orders (co-edited by Judith Resnik and Clare Ryan) inquires into the authority exercised by constitutional courts and reflects on the political and legal shifts that have taken place over the course of 2016-2017.

The first chapter, focused on Brexit and its immediate aftermath, is emblematic of a reconstitution of political-legal orders and provides a backdrop for the chapters to follow. Chapter II, Democratic Authority, Executive Prerogatives, and the Courts, considers how, within given polities, courts respond to claims that the outcomes or structures of democratic processes are unlawful. Chapter III, Disassociation, reflects on disengagement efforts across the globe. Courts have been called upon to examine the domestic processes required to authorize withdrawal and to decide what role (if any) international law plays in determining when a country can reject what were binding treaty obligations. Chapter IV, Exiting by Degree, centers on disengagement within Europe and deepens the puzzle about what disassociation means. It raises the question: when do acts of domestic resistance to what were thought to be accepted norms (such as judicial independence) become a form of disassociation from within?

The last two chapters address a historic function of sovereignty: maintaining peace and security through criminal law and policing.
Chapter V, (De)criminalization, address when courts prohibit—or require—criminalization of certain activities. From sexual identity to procreation and assisted suicide, courts have addressed the impact of criminal laws on individual privacy, liberty, autonomy, and free expression. Chapter VI, Constitutional Constraints on Policing, examines how policing has come within the ambit of constitutional courts. This Chapter considers what the constitutional boundaries on policing are in terms of regulating investigations, stops, detention, and the use of force, and how the courts’ rulings reflect democratic commitments to equality and dignity, as well as transnational approaches to police powers

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