Constitutional Implications Research Articles

The multifaceted constitutional dynamics of U.K. devolution

When it was introduced in 1999, devolution for Scotland, Wales, and Northern Ireland was recognized as a constitutional change of pivotal importance. This article argues that devolution has been a dynamic process which has triggered further important constitutional changes. The first section provides a conceptual discussion of devolution by comparing it with federalism as a system of territorial government. In order to further develop the argument, attention is then concentrated on the evolving characteristics of the respective systems in Scotland, Wales, and Northern Ireland. Particular attention is devoted to crucial issues of constitutional design. For example, this includes the failure to establish a link between revenue raising and spending in Scotland; the creation of a Welsh Assembly without sufficient law-making powers; the debate over the functions granted to the Northern Ireland executive. Next the discussion turns to the so called West Lothian question which draws attention to the most pronounced asymmetry caused by devolution, namely, the implications of not having an equivalent level of devolved government for England. Finally, the discussion examines the impact of devolution on legislative procedures and the use of legislative consent motions. The article concludes by considering the trajectory of the changes to each devolved system and related constitutional implications.

The Pedagogy of “Governance”

Traditional public administration scholarship focused on government, reflecting the study of public actors delivering services. But recently the focus on government and governmental actors has been replaced by a new term “governance” to reflect the increasing reliance on for-profit, nonprofit, and faith-based organizations to deliver these services. The reasons for the government by proxy are varied, yet little attention has been given to its constitutional implications. This article examines the implications of this new governance when it comes to service delivery of traditional public goods by public, for-profit, non-profit, and faith-based organizations. It describes the challenges this blurring of sectoral lines poses both for the study of public administration and in the teaching and training of students.

Public Law and The Executive

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

The Constitutional Implication for Student Athletes of Their Rights to Learn

The Constitutional Implication for Student Athletes of Their Rights to Learn

Employee ‘Free’ Choice in the Mirror of Liberty, Fairness and Social Welfare

The publication of Richard Epstein’s book, The Case Against the Employee Free Choice Act provides an opportunity to reconsider (A) the movement to displace the regime of judge-made law that had previously governed labor relationships, (B) the purpose of the NLRA and (C) the revolutionary implications of the effort to transform the NLRA into a law that places its thumb on the scale in favor of unionization. Describing the central provisions of the Employee Free Choice Act (EFCA), its economic consequences, its constitutional implications, and its connection to the decline of unionism, Epstein offers a balanced portrayal of the EFCA that suggests this statutory initiative diminishes human liberty and compromises the interests of most workers, employers, and the nation as a whole.Beyond Epstein’s manifestly correct emphasis on the proposal’s unfairness to workers and employers tied to possible union coercion and his assessment of the initiative’s adverse social welfare implications, the case against the EFCA should be expanded in two ways. First, his critique could be enriched by deconstructing progressive presuppositions tied to this initiative and by focusing on the disproportionately adverse consequence of this proposal on marginalized Americans. Such consequences persist in America’s current era. Second, Epstein’s examination would be enhanced by understanding the EFCA as an attempt by highly politicized labor unions to gain additional political revenues for broad social purposes that are unrelated to both collective bargaining objectives and workers’ actual preferences.

UTAH’S OPEN COURTS: WILL HIKES IN CIVIL FILING FEES RESTRICT ACCESS TO JUSTICE?

72 1024x768 Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:Calibri,sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Times New Roman; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:Times New Roman; mso-bidi-theme-font:minor-bidi;} During the 2009 General Legislative Session, the Utah Legislature approved measures to increase the civil filing fees of the Utah State Courts. Because of the judiciary's budget strains and expanding workload, the state's leadership deemed the fee increase necessary to ensure that the courts continued to function adequately for the adjudication of disputes. The increased revenue generated from the higher fees may ensure broader access to justice in one sense. However, raising filing fees may also place access to justice beyond the reach of some of the less fortunate in society. These higher fees could have the greatest impact on the working poor and the lower middle class, for whom dollars are dear. Part II of this Note addresses the context surrounding the decision to raise civil filing fees. Part III explores the federal constitutional implications of requiring fees of all litigants, especially the poor, as a prerequisite to accessing the justice system. Part IV revisits and assesses the adequacy of Utah's accommodations for indigent litigants. Finally, Part V proposes revisions to the Utah Code that may simplify the system and encourage poor people to bring their meritorious claims to court. These revisions may also better protect the most vulnerable of litigants. The proposed revisions and current law are then compared in light of the Utah Constitution's guarantees.

Fundamental rights in the EU after Kadi and Al Barakaat

AbstractThis article takes stock of the emerging scholarship on the European Court of Justice's 2008 Kadi decision and seeks to make sense of the court's apparent evasiveness towards international law. The article argues that Kadi is best understood as an act of civil disobedience prompted by the UN Security Council's misapplication of foundational principles of the international order. In turn, the court's forceful articulation of the stakes in this case signals a prioritisation of basic rights within the supranational constitutional architectonic. In this respect, the ‘domestic’ constitutional implications of Kadi are just as far reaching as its consequences for the EU's status as an actor under international law.

The case of Johannesburg water: What really happened at the pre-paid ‘Parish pump’

Patrick Bond and Jackie Dugard consider South Africa’s retail water policy and delivery system through the dual lens of the proceedings in Mazibuko & Others v City of Johannesburg & Others , heard in the Johannesburg High Court from 3-5 December 2007, and a recent hydropolitical analysis by the country’s leading water authority, Mike Muller. Together they raise crucial debates around the first democratic government’s success in delivering water to people on low incomes. Several policy and practical issues are highlighted as deserving special scrutiny: the constitutional implications of pre-paid water meters and shallow sanitation, especially in cases of water emergency and chronic poverty; the origins and sufficiency of Free Basic Water (FBW) as well as the unaffordability for poor households of water beyond the current FBW allocation; and the politics of local and national state-society relations in a context of transnational corporations, multilateral financial institutions and market-oriented state policies. The authors’ bias is towards unveiling power relations that maintain poor people in water poverty, notwithstanding ‘developmental’ rhetoric

A Very Tangled Web

A recent Indiana Court of Appeals ruling raises significant concerns about the continuing erosion of the line between public and private, and the proliferation of the “unintended consequences” that flow from sectoral blurring. The authors use that case to introduce a broader discussion of the merits and drawbacks of public–private contracting, and the challenges in distinguishing among organizational types in an era that has seen considerable overlap in organizational characteristics. The authors survey the literature on these subjects and conclude with a discussion of the underappreciated financial, ethical, and constitutional implications of the erosion of clear sectoral distinctions.

The Principle of Proportionality in the Viking and Laval Cases: An Appropriate Standard of Judicial Review?

The article analyses the application of the proportionality principle in the Viking and Laval judgments. It argues that one of the main reasons why the outcome of these two eminent cases became so controversial was because of the way in which the Court applied the proportionality principle. The paper will first give an overview about the application and elements of the proportionality test in EC internal market law; it will then raise two related issues, namely to what extent the so-called ‘Prinzip der praktischen Konkordanz’ is relevant in the existing case law and whether there is a need for a differentiated approach under the proportionality test in horizontal situations. The article urges the ECJ to develop a different standard of judicial review for trade union action. The paper will draw on some selective national examples to show that where a proportionality principle is applied in industrial action cases, both the elements and the substance of the test are different from those applied by the Court of Justice in these two cases. The last part of the paper will highlight the differences between the proportionality review in the two cases, including the importance of the reference to the minimum harmonisation clause of the Posted Workers Directive in the Laval judgement. Finally, the article invites the reader to pay attention to the broader constitutional implications of judgement in the field of social policy, i.e. to what extent the cases generated coordination between the Member States at the intergovernmental level.

Private Contingent Fee Lawyers and Public Power: Constitutional and Political Implications

A dangerous trend has developed in the litigation of state civil damage claims brought against private individuals and entities: the state’s use of private contingent fee lawyers, who are compensated based on a percentage of the amount recovered. As is the case when contingent fee lawyers represent private clients, if the state loses the litigation the lawyers recover nothing. While such an arrangement arguably has much to recommend it in the case of purely private litigation, when employed by the state it threatens core precepts of American political and constitutional theory. Because, unlike private litigants, the state wields potentially dominating power over private society, those exercising the state’s legal power are obligated by democratic and constitutional principles, as well as the dictates of legal ethics, to assess and pursue the public interest without direct concern for personal or private gain. When private contingent fee attorneys are vested with authority to vindicate the interests of the...

Land Acquisition: Its Legal and Constitutional Implications

Property is the most ancient, the most vital institution, with which man became concerned. Its original function is to secure physical existence. It is a social concept and being a social concept is a creation of law. According to Bentham, Property and law are born together and die together. He felt that before laws were made there was no property and that if the laws were taken away property would cease . If the definition of property is examined from the Anglo-American Jurisprudence and from the Russian Jurisprudence, they apparently reflect the contradictory views. The 5th and 14th Amendment to the Constitution of the United States of America says that, “No person shall be deprived of his life, liberty or property, without due process of law”. According to it, property, the term in its broader sense, is the right of dominion, possession, and power of dispossession which may be acquired over a physical thing, and not the thing itself. Property, in a sense, is the projection outside, of a man’s personality. Man is identified by his physical and mental characteristics. And in the image of the person must be included not only his tastes, preferences, but also the objects of personal possession indissolubly associated with him. These things achieve an immorality of their own. The Indian view has always been that property, or at any rate, the right to the possession of it, belonged to the person who put the land first to beneficial use. There is nothing anti-social in the concept of personal possession. Even in socialistic countries, the private ownership of articles that are manufactured by the persons themselves is recognized. Ownership of property was an item in the Declaration of Human Rights. In the American Constitution, the importance of this aspect was recognized to the extent that it was said that the guarantee of liberty of a person by itself included protection of the rights of property and it was not necessary to have word ‘property’ included in the amendment to the constitution. A citizen of India has the right to acquire, hold and disposed of the property. The ownership and control of the material resources of the community are so distributed as best to sub serve the common good.

Communications Privacy in the Military

In the wake of the 1996 case of United States v. Larson, in which the Court of Appeals for the Armed Forces held that a service member held a right to privacy in her workplace e-mail, the Department of Defense issued a DoD-wide policy requiring DoD employees to consent to e-mail monitoring, interception, and seizure for any purpose - including law enforcement. With military members deployed to Iraq and Afghanistan relying exclusively on government information systems to communicate daily with friends and family, the DoD policy arguably violates core Fourth Amendment privacy protections. Proceeding from a discussion of first principles in military privacy to the four seminal military cases involving communications privacy expectations, I address the constitutional implications of the DoD policy, exploring whether it unconstitutionally warrants searches for law enforcement purposes. I conclude with a normative appeal for military courts and the DoD to follow the Supreme Court’s reasoning in O’Connor v. Ortega and distinguish work-related from law enforcement searches.With both civilian and military law in flux over the scope of privacy expectations in workplace electronic communications, my aim is to provide timely, considered guidance to courts, policy makers, and practitioners in determining what service members should expect from a normative perspective as they use government information systems to communicate with family and friends.

Poverty: legal and constitutional implications for human rights enforcement in Nigeria

This work ventilates the problem of poverty in Nigeria, where over 70 percent of the population is living below the poverty line, and the theoretical and practcal implications of this for the enforcement of the human rights of the poor, woh are completely absorbed in the daily rigours of the struggle for survival in Nigeria.

Communications Privacy in the Military

In the wake of the 1996 case of United States v. Larson, in which the Court of Appeals for the Armed Forces held that a service member held a right to privacy in her workplace e-mail, the Department of Defense issued a DoD-wide policy requiring DoD employees to consent to e-mail monitoring, interception, and seizure for any purpose - including law enforcement. With military members deployed to Iraq and Afghanistan relying exclusively on government information systems to communicate daily with friends and family, the DoD policy arguably violates core Fourth Amendment privacy protections. Proceeding from a discussion of first principles in military privacy to the four seminal military cases involving communications privacy expectations, I address the constitutional implications of the DoD policy, exploring whether it unconstitutionally warrants searches for law enforcement purposes. I conclude with a normative appeal for military courts and the DoD to follow the Supreme Court’s reasoning in O’Connor v. Ortega and distinguish work-related from law enforcement searches.With both civilian and military law in flux over the scope of privacy expectations in workplace electronic communications, my aim is to provide timely, considered guidance to courts, policy makers, and practitioners in determining what service members should expect from a normative perspective as they use government information systems to communicate with family and friends.

Wyman v. James Revisited: Judicial Oversight, Constitutional Rights, and Social Services Investigations

This article is focused upon administrative searches and seizures undertaken by social services agencies with respect to child welfare complaints. In addition to articulating the past and current state of the law, the article proposes changes to bring about a greater consistency among the federal and state courts in the United States. The U.S. Supreme Court, in Wyman v. James, 400 U.S. 309 (1971), for the first time considered the issue of the applicability of the Constitution to social services investigations, though it has continued to explore the constitutional implications of the administrative search or seizure. The Court has not sought to address the issue since that time. Nevertheless, in the intervening thirty-six years, a large number of federal and a handful of state courts have reviewed the constitutionality of social services investigations and, in the process, have tackled the issue of the continued viability of Wyman: whether social workers are state actors for the purpose of the applicability of the Fourth Amendment, whether child welfare investigations constitute a search or seizure, whether a warrant and probable cause is required to conduct a search and whether a social worker special need exception exists to Fourth and Fourteenth Amendment scrutiny. Given the on-going occurrence of the social services home investigation since Wyman, the need for an articulation of the current state of the law is great. Part One of this article attempts to provide such an articulation, giving an overview of both Fourth and Fourteenth Amendment protections as they apply to all governmental searches. Part Two undertakes a review of the Pre-Wyman case law regarding administrative searches, as well as Wyman itself, reviewing finally the post-Wyman case law from both the federal and state courts regarding administrative social services investigations and the applicability of the Fourth and Fourteenth amendments. Part Three of this article reconsiders Wyman in light of the most recent judicial developments and asks the question as to whether the requirement of a warrant and probable cause is appropriate for social services child welfare investigations or whether the Supreme Court's totality of the circumstances rationality test or its Special Needs doctrine may justify the creation of a social worker exception to the general warrant and probable cause requirements incumbent upon most searches and seizures.

Juridical and constitutional implications of CARICOM treaty practice

In a case involving a CARICOM member state in relation to the Agreement Establishing the Council for Legal Education (CLE), several law students of one member state party to the Agreement were denied their entitlement to pursue professional studies in a school of law established for the purpose in another member state because the second member state had not implemented the relevant provision of the CLE Agreement. The CLE in the member state concerned pleaded the absence of an enacting provision in the Legal Profession Act as the ground for not observing the provisions of the Agreement. No action was brought at the international level by the state of the students aggrieved to vindicate their rights and the action brought by the students themselves at the municipal level did not and could not succeed. Following an overview of CARICOM treaty practice, this article examines the effects of unincorporated treaties in the light of dualism, to which doctrine the overriding majority of CARICOM states subscribe.

Post-Conviction DNA Testing and the Emergence of a Fundamental Constitutional Right

The American criminal justice system is designed to ensure that innocent men and women are not wrongfully convicted for crimes that they did not commit. Despite numerous safeguards, defense lawyers and civil liberties advocates have been arguing for years that the legal system is fundamentally unfair and unjust. Because of power and resource imbalances, the argument goes, federal and state prosecutors routinely win convictions against individuals who did not commit the crimes for which they were on trial. As a result, thousands of actually innocent people are languishing in prisons and death rows around the country. In the past, such claims were difficult to prove, primarily because of the degradation of evidence, both physical and eyewitness, and the fundamental belief in the correctness of legal decision-making. However, forensic DNA analysis is increasingly being used in post-conviction litigation to prove that innocent people have been wrongfully incarcerated. Yet the decisions of our criminal courts are considered to be final unless a defendant's constitutional rights were violated at trial. That belief is so strong that, in the landmark 1993 case of Herrera v. Collins, the Supreme Court ruled that even the actual innocence of prisoner was not sufficient to necessitate the reversal of a conviction. Rather, it could only serve as the gateway though which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits. This requirement has raised significant legal challenges for defense lawyers hoping to use DNA test results to vacate the convictions of their clients. Consequently, many defense lawyers have called for the creation of a fundamental constitutional right to post-conviction testing, thus over-riding the balancing and utility tests that prosecutors and courts use to deny access to biological evidence. This demand is based on the claim that DNA evidence has the power to provide cast iron scientific proof that our system convicts and sentences innocent people on a regular basis. These legal arguments have raised fundamental questions about the constitutional implications of technological change. If a constitutional right to post-conviction DNA testing is eventually recognized, then legal procedure will lose some of its status as the legitimator of legal finality to the authority of science and technology. Indeed, it is precisely for this reason that the issue has been so contested within the judicial community. While some judges have been eager to modify existing legal procedure based on the authority of DNA evidence, others have sought to defend the sanctity of procedure in law from incursions by alternative sources of finality. At stake is the means by which our legal system guarantees justice and social order.

Constitutional Implications of Regional CO2 Cap-and-Trade Programs: The Northeast Regional Greenhouse Gas Initiative as a Case in Point

I. INTRODUCTION II. THE RGGI III. PREEMPTION IV. COMPACT CLAUSE V. THE DORMANT COMMERCE CLAUSE A. Offsets B. Leakage VI. CONCLUSION I. INTRODUCTION For eight years the Bush administration avoided addressing global warming, first denying its existence, then denying its anthropogenic contributions, and finally denying the government's legal ability to combat it. There is a new administration, however, and Presidential candidate Obama campaigned in favor of a national cap-and-trade program. Nevertheless, there are many matters of critical importance on the U.S. Congress' plate, and as of this writing Senate Majority Leader, Harry Reid, was hoping to take up climate change legislation by the end of the summer of 2009. The chances of passage even then are not clear. Economic woes and Republican opposition could still do it in. This political reality suggests that existing and proposed regional cap-and-trade programs may have continuing importance. Consequently, the constitutional implications of these programs are worthy of consideration. The Regional Greenhouse Gas Initiative (RGGI) is already in effect in ten northeastern and mid-Atlantic states, (1) while the Western Climate Initiative and Mid-western Regional GHG Reduction Accord are still far from operational. This Article considers three possible constitutional issues with regard to a regional cap-and-trade program, focusing on the RGGI: preemption, the Compact Clause, and the Dormant Commerce Clause. II. THE RGGI The RGGI is a cooperative undertaking of ten states (2) that began in 2005 with a Memorandum of Understanding. (3) In 2006 the RGGI developed a Model Rule. (4) Each state undertook to cap overall C[O.sub.2] emissions from electrical generating plants in the state in accordance with the RGGI Model Rule. (5) In essence, beginning in 2009 and lasting until 2014, the cap is set at the estimated amount of emissions in 2008. Thereafter, the cap is decreased by 2.5 percent each year until 2018, for a total decrease in emissions of 10 percent from the 2008 baseline. Each fossil-fuel-fired electric generating unit serving a generator of twenty-five MW or larger must possess sufficient for its emissions in any compliance period. Most of these are sold at auction, and the purchasers can freely trade them on the market. Those who need more to cover their emissions will need to buy them; those that possess more than they need may sell them. The money generated by the auctions will be used to fund energy conservation, energy efficiency, and clean energy programs. The RGGI also allows for the assignment of allowances to generating facilities for certain types of projects that reduce or sequester greenhouse gas emissions in areas outside of electrical generation. Currently, only five types of projects can qualify for offset allowances. (6) Generally no more than 3.3 percent of a facility's can be offset allowances. (7) There are strict application and verification processes to qualify an offset. An offset project may be located in any state, not just a RGGI state, if the other state has a cooperating regulatory agency that has entered into a Memorandum of Understanding with the RGGI states to provide oversight of the offset projects in that state. The RGGI is implemented by each state enacting its own laws, which must conform to the RGGI Model Rule, to govern the generating facilities in its state. (8) RGGI, Inc., a nonprofit corporation, was created to provide technical and administrative services to the RGGI states. The allowance auctions are performed by World Energy Solutions, Inc., which operates online exchanges for energy and green commodities, and Potomac Economics, which performs monitoring and competitive assessment of wholesale electricity markets in the United States, oversees the auction. III. …

Constitutional Implications of EU Membership: An Overview of Constitutional Issues in the Negotiating Process - The Croatian Perspective

Normal 0 21 false false false HR X-NONE X-NONE MicrosoftInternetExplorer4 st1\:*{behavior:url(#ieooui) } /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin:0cm; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:Calibri,sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Times New Roman; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:Times New Roman; mso-bidi-theme-font:minor-bidi;} This article gives an overview of the constitutional issues arising from Croatia’s EU accession negotiations. Corresponding to the current status of negotiations, a provisional overview is made, consisting of the constitutional issues that are either already on the negotiating agenda or anticipated on the basis of the existing, internal legal analyses and/or the experiences of candidate countries from previous enlargements. They are divided into three groups: 1) constitutional issues which have arisen during the screening process and in subsequent talks and negotiations with the EU on individual negotiating chapters; 2) constitutional issues which have not been directly raised in negotiations with the EU, but which Croatia needs to consider in the context of the overall preparations for EU accession; 3) the possible further constitutional implications of EU membership following the entry into force of the latest EU treaty reform. The article looks at how Croatia and the EU approach these constitutional issues in the context of accession negotiations, especially having in mind the new procedural mechanisms (ie benchmarks) introduced by the EU into the process of negotiations. Different approaches are also determined by the type of constitutional issues: the sector-specific issues related to legislative alignment in certain areas of the acquis , which will be addressed in the course of negotiations on individual chapters, are distinguished in principle from the general constitutional issues related to finding the ‘right’ constitutional legal basis and formula for Croatia’s accession to and effective functioning in the EU (where Croatia has to decide on its own on the need for constitutional adjustments and the manner of making them). In comparison with the previous EU enlargement round, the analysis shows that there are no significant differences in Croatia's accession negotiations with respect to the areas in which constitutional issues have been identified. Croatia will be able to use the experiences of the ‘new’ EU Member States, although there are no standard or best solutions for adjusting the constitutional legal framework for EU accession. The final list of all constitutional issues that Croatia will (have to) address before accession to the EU will directly depend on the results of negotiations as well as on wider legal and political deliberations that are expected to take place in Croatia in the coming period.