The Hughes Court

The Hughes Court: From Progressivism to Pluralism, 1930 to 1941 describes the closing of one era in constitutional jurisprudence and the opening of another. This comprehensive study of the Supreme Court from 1930 to 1941 – when Charles Evans Hughes was Chief Justice – shows how nearly all justices, even the most conservative, accepted the broad premises of a Progressive theory of government and the Constitution. The Progressive view gradually increased its hold throughout the decade, but at its end, interest group pluralism began to influence the law. By 1941, constitutional and public law was discernibly different from what it had been in 1930, but there was no sharp or instantaneous Constitutional Revolution in 1937 despite claims to the contrary. This study supports its conclusions by examining the Court's work in constitutional law, administrative law, the law of justiciability, civil rights and civil liberties, and statutory interpretation.

Thailand’s Law on Criminal Online Falsehoods: A Critical Discussion

This article critically discusses the Thai criminal law applicable to online falsehoods, namely Section 14 para. 1(1) and (2) of the Act on Computer-Related Offences. Linking developments in Thailand to global and Southeast Asian fake news discourses, the article’s main part sheds light on several interpretational and constitutional complexities. Conflicting concepts of falsity and an uncertain ambit of protected interests are found to persist despite legislative amendments. As the right to freedom of expression in principle also protects false factual statements, recent constitutional jurisprudence on the principle of proportionality is applied to evaluate the prescribed level of criminal punishment. The article provides an in-depth analysis that contributes to the evolving scholarship on the challenges of regulatory responses to fake news.

The Inadequacies of the French System Regarding Access and Benefit-sharing and Its Evolution through the Recognition of the Notion of Local Community in the Nagoya Protocol

The French law for the reconquest of biodiversity aims to transpose the Nagoya Protocol into national law. Rather than supporting the notion of an autochthonous and local community or even taking into account the autochthonous character of the concept of a local community, the legislature has chosen to use the notion of a community of inhabitants. The notion of local community, which is specific to environmental law, nevertheless satisfies the requirements of constitutional jurisprudence, as it does not consist of a community of origin, culture, language or belief. Beyond the logic inherent in the Law of 8 August 2016, the recognition of local communities, which is at the heart of the mechanism for sharing access and benefits, could make it possible to correct the multiple shortcomings, in terms of access to both genetic resources and traditional knowledge, associated with the sharing of the benefits that result from their use.

The Fundamental Right of Marriage in the Constitutions of European Countries

This study aims to present an overview the position of marriage in the constitutions of European countries. First, the origin of marriage as a fundamental right is looked at from a historical perspective, leading to different supranational instruments’ declarations. Subsequently, different approaches of the constitutions of European countries are scrutinised and classified depending on what protection, if any, is given to marriage. The spectrum spreads from defining marriage as protected by declaring it as a fundamental right to the lack of constitutional mention. For this broad overview, the scope of this work is based on the fact that all of these countries are parties to the Council of Europe, and the Rome Convention of 1950. Finally, a short exploration of some of the countries’ constitutional jurisprudence is carried out regarding the most controversial topics concerning the fundamental right to marriage.

Constitutional Convergence in East Asia

This comparative study of the constitutional jurisprudence of three East Asian jurisdictions investigates how the rulings of the Constitutional Court of Taiwan, the Constitutional Court of Korea and the Hong Kong Court of Final Appeal have converged. The unique political contexts of all three jurisdictions have led to strong courts using the structured proportionality doctrine and innovative constitutional remedies to address human rights issues. Hong Kong, Taiwan, and South Korea have the only courts in Asia that regularly use a structured four-stage Proportionality Analysis to invalidate laws, and routinely apply innovative constitutional remedies such as Suspension Orders and Remedial Interpretation to rectify constitutionally flawed legislation. This volume explores how judges in these areas are affected by politics within their different constitutional systems. The latest developments in Asian constitutional law are covered, with detailed analysis of key cases.

Living Freely Behind Bars: Reframing the Due Process Rights of Transgender Prisoners

Federal constitutional jurisprudence, as it stands today, provides insufficient protections for transgender individuals who are incarcerated. Transgender prisoners face high rates of physical and sexual assault, harassment, and other mistreatment by state and federal prison officials and individuals incarcerated with them. Commonly pursued avenues for relief—namely the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the right to privacy—present hurdles in the form of too-hard-to-meet legal standards, and they perpetuate harmful stereotypes and cultural norms that should occupy no place in modern constitutional law. This Note proposes that, instead of relying on these inadequate constitutional claims to vindicate their rights, transgender prisoners and their advocates should consider litigating under the Due Process Clause of the Fifth and Fourteenth Amendments, articulating a right to live freely in accordance with one’s gender identity. Recognition of such a right would enable plaintiffs to utilize more favorable substantive due process legal standards and eschew perpetuating outdated notions of gender within the law.

The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria

Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.

La Naturaleza, ¿es considerada como sujeto titular de derechos dentro de la jurisprudencia constitucional ecuatoriana? / Nature, ¿is it considered as the subject of rights within the Ecuadorian constitutional jurisprudence?

El pueblo soberano del Ecuador, a través de la Carta Magna, ha decidido construir una nueva forma de convivencia ciudadana en diversidad y armonía con la naturaleza; y para lograr esta celebración, se ha reconocido una evolución en lo jurídico, haciendo acreedora a la naturaleza como titular de derechos propios como un sujeto de derechos. El presente estudio tiene como objetivo realizar un análisis jurídico de carácter bibliográfico, propone reconocer los derechos a la naturaleza dentro de la concepción total como sujeto de derechos, el respeto integral de su existencia, el mantenimiento y regeneración de sus ciclos vitales, procesos evolutivos y el derecho a la restauración. Para esto; se realizará una revisión de la normativa legal vigente como la jurisprudencia, fuentes más importantes para el desarrollo de los derechos a la naturaleza para el caso de la SENTENCIA No. 166-15-SEP-CC, dictada por la Corte Constitucional del Ecuador, por medio de la acción extraordinaria de protección se pronunció sobre dos cuestiones principales: la vulneración de derechos constitucionales o la violación de normas del debido proceso.

Global constitutionalism in Taiwan

In contrast with the decline of liberal constitutionalism around the world, liberal constitutionalism seems to be resilient in Taiwan. Weaving together several threads of history, law and politics, this article first argues that foreign legal education and identity concerns explain why judicial review and constitutional development more broadly in Taiwan have not only flourished but mirrored both German and American constitutional jurisprudence. Second, it maintains that the case of Taiwan poses another challenge to the concept of global constitutionalism since the number of referenced jurisdictions is quite limited.