"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Saturday, May 2, 2015

Assortment of SSRN articles on Constitutional Law in the month of April

1. Do Laws Have a Constitutional Shelf Life? By Alli Orr Larsen, Posted on April 20, 2015.
An interesting question is posed about the future of law that was relevant and rational when written but lost its value as time and circumstances change by. Relying on a decided case, it is assessed whether constitution gives the leeway to hold a law as expired, which was constitutional when enacted.

2. Free Exercise by Moonlight, By Marc O. DeGirolami , Posted on March 30, 2015,
Issue of religious accommodation and free exercise is the discussion in the background of two decided cases. Judicial decisions are analyzed reflecting its impact on later judgments and current day socio-political context.

3. New Institutional Mechanisms for Making Constitutional Law, By Mark Tushnet , Posted on April 2, 2015.
This paper searches new modes of constitution making beyond the traditional Constituent Assemblies and Interpretation.

4. Constitutional Amendment by Stealth, By Richard Albert , Posted on April 2, 2015.
In the context of Canada, the author argues a method of constitutional amendment that is calculated and surreptitious. This arguably is through a process of consciously creating new practices which successors are forced to follow that eventually settles into constitutional conventions. This leads to amend constitution without amending the text through established procedure.

5. Constitutional Law: Critical and Comparative, By Mark Tushnet, Posted on April 4, 2015.
An introduction essay to a volume of studies by Latin American scholars of constitutional law and theory. The scholars are reflecting on Tushnet’s works.

6. Elite Institutionalism and Judicial Assertiveness in the Supreme Court of India, By Manoj Mate, Posted on April 19, 2015.
“This article examines judicial challenges to central government power in the Supreme Court of India by analyzing activism and assertiveness in fundamental rights decisions from 1977 to 2007. Based on field research and contextual analysis of politically significant decisions, the article traces patterns of judicial assertiveness in politically significant fundamental rights decisions.”

7. Enabling Resistance: How Courts Facilitate Departures from the Law and Why This May Not Be a Bad Thing, By Adam Shinar , Posted on, April 1, 2015.
The paper looks at constitutional interpretation by administrative officers. Argues that departing from strict letter of law for meeting certain contingencies is not all that bad.

8. The Supreme Court’s Power of Judicial Review in Bangladesh: A Critical Evaluation, By Kawser Ahmed , April 16, 2015.
9. Global Standards of Constitutional Law: Epistemology and Methodology, By Maxime St-Hilaire , Posted on  April 24, 2015.
Author is on a pursuit to identify ‘global standards for constitutional law’. The globalization of constitutional law has oriented development of constitutional law towards best practices and setting standards. Author calls this phase as “second order of legal positivity”.

10. Ethnic Rights and Constitutional Change: The Constitutional Recognition of Ethnic Nationalities in Myanmar/Burma, By Melissa Crouch , Posted on March 30, 2015.
11. But Names Will Never Hurt Me: Extending Hate Speech Legislation to Protect Gender and Sexual Minorities in New Zealand, By Vanessa Haggie, Posted on April 30, 2015.
The need to harmonize censoring of expression to curb hate speech is the highlight of the paper.

12. Same Sex Marriage in Hong Kong: The Case for a Constitutional Right, By Michael Ramsden  and Luke Marsh , Posted on April 3, 2015.

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