Constitutional Implications Research Articles

Better regulation and the future of EU regulatory law and politicsBetter regulation and the future of EU regulatory law and politics

The flurry of recent activity in the EU over “Better Regulation” has important constitutional implications, particularly for the Union’s institutional balance. As this article will argue, however, the main question the Better Regulation debate poses is one of how to reconcile the increasing tension in the EU between different paradigms of regulation. Is regulation “better” because it conforms to the preferences of citizens as expressed in national and EU elections, or rather because it meets technical and procedural standards, from consultation to impact assessment, able to improve the “objective” quality of EU legislation? While Better Regulation tries to split the difference between these two avenues for the future of EU regulatory law and politics, each avenue carries the capacity to significantly frustrate the other. Current debates in the EU about regulatory reform defer rather than answer a fundamental question: what makes regulation better?

The Robustness of EU Financial Crimes Legislation: A Critical Review of the EU and UK Anti-Fraud and Money Laundering Scheme

In this paper we set out to chart the European Union’s (EU) genesis of fighting crime as partly one of establishing the EU as an “Area of Freedom, Security and Justice” (AFSJ) and partly one of facilitating the EU internal market creation and the establishment of a global market place. We provide an overview of the current complexities facing the EU in its current struggles for a reformation and against statist approaches by focusing on the law on financial crimes and its contemporary challanges. When viewed in an historical perspective the EU’s tactic in the fight against financial crimes appears to depart from the classic internal market-based formula of the removal of obstacles for market creation and thereby ventures into the EU criminal law domain with all of its inherent complexities, without an adequately matured legal framework to endorse its policies from within. Second, to the extent that the EU adopts the market theory template in the EU policy area of ‘Freedom, Security and Justice’, there are global elements to the EU’s sanction policies. These features confirm a hybridity in which legal sources are interacting within the AFSJ field. We aim to critically assess the current state of play of the regulation of financial crimes in the contemporary EU. Furthermore, the paper focuses on recent developments in the area of financial crimes by looking at the framework for EU anti-fraud legislation: OLAF, the proposed EU Public prosecutor, the function of Eurojust and the proposed Directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law. Specifically, we discuss the way the Fourth Anti-Money Laundering Directive came about and if, as claimed by the EU itself, it equips the EU with the right legal toolkit for fighting money laundering and terror financing. We also set out to scrutinize the constitutional implications of an increased powers vested in the EU Agencies in this area as powerful players for EU enforcement and we discuss the question of accountability as well as the problem of a human rights deficit in this area. We end however on a happier note by looking at the judiciaries concern to maintain individual data protection and the EU Court of Justice as a guarantee of proportionality and reasonableness in European legislative action.

Crowdsourcing the Egyptian Constitution

Drawing on empirical evidence from online citizen feedback on the 2012 Egyptian Constitution, we demonstrate that despite normative skepticism about implications of participatory constitution making, citizen participation matters. Using data of more than 650,000 online votes and comments on the constitution, we find that draft provisions with higher public approval are less likely to change and those with lower approval are more likely to change. We also find that Articles related to rights and freedoms are more likely to change based on online public input. Finally, following the boycott of the Constituent Assembly by non-Islamists, changes in draft Articles based on public feedback drop sharply. These findings highlight the conditions under which participatory constitution making becomes more effective. First, consensus among citizens over the most salient issues increases the probability that those issues would be successfully incorporated in the constitution. Second, without ex ante elite agreement over the design of the constitution, it becomes difficult to account for citizen proposals amid political clash between elites.

Las implicaciones constitucionales de la crisis: una reseña de la literatura reciente

El objetivo de este artículo es ofrecer una panorámica de la literatura más relevante sobre las implicaciones constitucionales derivadas de la crisis de la Unión europea (UE). Mi análisis explora las principales opiniones doctrinales sobre las mutaciones de la estructura constitucional de la Unión producidas por la crisis. Con este propósito el término «mutación constitucional» no debe entenderse como una completa ruptura con el pasado y de hecho a lo largo de este artículo trataré de enfatizar las continuidades y interrupciones en la visión tradicional del proceso de constitucionalización de la UE.

Parliament's Constitutional Standards

How can parliamentary scrutiny of government bills be improved? Often the first answer to this question is to suggest procedural measures that provide parliamentarians with greater opportunity to engage in parliamentary scrutiny, for example by increased used of pre-legislative scrutiny or through reform of public Bill committees. The answer put forward in this chapter, the case for substantive parliamentary constitutional standards, is based on a different, albeit complementary logic, which seeks to improve the substance of Parliament’s engagement with the difficult constitutional questions that frequently arise during the legislative process. The central argument of this chapter is that Parliament’s own constitutional standards could and should provide a potentially vital normative focal point for all parliamentarians engaged in the scrutiny of provisions with constitutional implications.

Behind a veil of secrecy: animal abuse, factory farms, and Ag-Gag legislation

For years, animal rights organizations have sought to expose animal cruelty on America’s factory farms. With the meat and dairy industry inaccessible to the public, animal advocates rely on undercover investigators who gain access to farms by becoming employees. Working from the inside, these investigators become whistleblowers when they reveal animal cruelty unrelated to the already inhumane conditions of animal husbandry. An effective strategy that has exposed animal abuse as well as conditions threatening to public health, in recent years the agriculture industry has pressured legislatures to enact laws that criminalize photography at factory farms. Dubbed ‘Ag-Gag’ laws by critics, the emergence of legislation targeting animal rights advocates raises important questions relevant to animal welfare, animal rights activism, and freedom of speech. This paper exposes the failure of government institutions to protect animals on factory farms while simultaneously silencing what is currently the only available mechanism for Americans to learn about abuse on factory farms. It also explores the Constitutional implications of Ag-Gag laws. Not only are Ag-Gag laws presumptively unconstitutional, but with their enactment – animal welfare remains unchanged, the American consumer remains uninformed, and America’s factory farms are free to abuse animals behind a legal veil of secrecy.

Sharing Water from Transboundary Rivers: Limits on State Power

Disputes between States of Australia over the sharing of the waters of rivers that flow through or form the boundary between two or more States (‘transboundary rivers’) have frequently been framed in terms of the ‘rights’ of the States. This article seeks to reframe the resolution of these disputes in terms of limits on State legislative and executive power. After reframing the problem in this way, the article first examines the scope of State legislative and executive power and its extraterritorial effect with respect to the regulation of transboundary rivers. Secondly, the article considers inconsistencies between the laws and regulations of two States with respect to transboundary rivers. Finally, constitutional implications and limits on State power are examined, with particular focus on whether there may be scope for the extension of the Melbourne Corporation principle to assist in the resolution of some transboundary river disputes.

Turner, Thornburgh, and an Inmate's Right to Read: The Chelsea Manning Case and Possible Solutions to BOP and USDB Regulation Language

In 2013, the United States Army Military District of Washington convicted army intelligence analyst Chelsea Manning of violating provisions of the federal Espionage Act by releasing highly-sensitive military and diplomatic documents to WikiLeaks. Currently incarcerated in a maximum-security prison, Manning faces solitary confinement for keeping prohibited publications in her cell without filing a book request. The Manning case represents a recent concern lodged at both the United States Disciplinary Barracks (USDB) rules and the Federal Bureau of Prisons (BOP) regulations they derive from: the ambiguity of how prison administrators may accept or deny book requests on a case-by-case basis.The current BOP framework under 28 C.F.R. § 540.71(b) allows wardens to deny a request if it is “determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity.”The United States Supreme Court preserves a doctrine of deference toward incoming publications as a First Amendment issue. Since 1977, the Court has maintained that prison administrators are in the best position to assess the reasonability of book requests. Institutional rules are flexible and depend on the individual prisoner, sentence, or behavior. Some correctional facilities keep relaxed systems meeting the minimum requirements of § 540.71, while others “refuse to allow any books whose content includes anything legal, medical or contains violence.”By affording prison officials the freedom to decide which materials to ban from federal inmates, inconsistencies result in the interpretation of § 540.71 throughout the federal prison system. This lack of judicial guidance can have a significant effect on the level of First Amendment protection afforded from institution to institution.This Note sheds light on the constitutional and enforcement implications of § 540.71 on book requests for federal inmates, and proposes an alternative to these regulations based on a federally recognized banned publication list extendable to the USDB Military Correctional Complex (MCC) Regulations. The Note will examine the deference given to prison officials — the “hands-off” approach — and the historical trend toward this doctrine. Education and open access to information in the prison system can encourage self-improvement and reduce recidivism. A guided, analytical approach to prison publication requests would eliminate the pressure to determine what constitutes objectionable material by equipping prison administrators with the sense of direction necessary to decide delicate constitutional questions, thus creating a level playing field between prison policies.

Black Spiders Weaving Webs: The Constitutional Implications of Executive Veto of Tribunal Determinations

In R (Evans) v Attorney General, the Supreme Court quashed the Attorney General's statutory veto of the Upper Tribunal's original determination made under freedom of information legislation. The Upper Tribunal had held that so‐called ‘advocacy’ memos should be published after a full hearing on the merits. The Supreme Court split five to two, with the lead judgment of Lord Neuberger using constitutional rather than administrative language and focusing on the rule of law. This note raises four objections to the lead judgment. First, it argues that the Upper Tribunal was acting in an executive not judicial capacity and the veto was not therefore a breach of the rule of law. Secondly it suggests the veto clause is best understood as a variant Henry VIII clause. Thirdly, it suggests Lord Neuberger's judgment is founded on a paradox. Finally, it argues that the judgment undermines parliamentary sovereignty. Future implications are then considered.

Constitutional Implications of the Fixed-Term Parliaments Act 2011

The Fixed-term Parliaments Act 2011 arose from a specific political circumstance: the need to cement the Conservative–Liberal Democrat coalition formed after the May 2010 General Election, but it had a far wider significance. The Act had important implications for the constitution, raising questions about the way in which it changes and the nature of its overall development. It brought about transformations long advocated by reformers. The Act reduced the scope of the Royal Prerogative and gave both ‘confidence’ and ‘no confidence’ votes in the House of Commons a statutory footing. It introduced a new parliamentary procedure for triggering early general elections, involving among other measures a supermajority in the House of Commons. The Act was controversial both for its substance and the processes used in its introduction. Regardless of how long it may remain in force, it has already proved to be an important experiment.

The Constitutional Standards of the House of Lords Select Committee on the Constitution

This report sets out a code of constitutional standards based on the reports of the House of Lords Select Committee of the Constitution. This codification exercise has three principal goals. The first is to draw attention to the normative foundations of the work of the Constitution Committee. The Constitution Committee was established in 2001 following a recommendation of the Royal Commission on the reform of the House of Lords.3 The Committee’s formal terms of reference were set by the House of Lords Liaison Committee and have not changed since then: ‘to examine the constitutional implications of all public Bills coming before the House; and to keep under review the operation of the constitution’.4 The Constitution Committee has used this remit to establish itself as a key constitutional actor. It has done this by producing important investigative reports that contribute to current debates on the constitution, and by publishing reports on the constitutional implications of Government bills, some of which have proved highly influential.5 The Committee’s influence and status derives from its ability to articulate, interpret and develop the norms of the British constitution that are relevant to the scrutiny process.

The Proposed Scotland Bill: The Constitutional Implications of Draft Clauses 1 and 2

A paper concerning the constitutional implications of clauses 1 and 2 of the proposed Scotland Bill relating to the permanent status of the Scottish Parliament and Government and the placing on a statutory footing of a constitutional convention concerning non-interference by the UK Parliament in devolved Scottish affairs.

About the significance of biological factors affecting pregnancy a married couple

A brief review of the literature analysis of the importance and interdependence of the main factors influencing the occurrence of pregnancy as a pair in the treatment of infertility, such as the woman's age, ovarian reserve, the semen of a man and the duration of infertility. The review also presents the data concerning the practical implications of sexual constitution and sexual maturation in men and women in the pubertal period. When evaluating male fertility invariably significant factor in the prediction of pregnancy are, impregnating ability to ejaculate. Infertility is more common in males with delayed development in the pubertal period with a weak type of sexual constitution. Results of treatment of male infertility, the dynamics of the semen and pregnancy of the couple on the background of pathogenetic therapy correlates with the type of sexual constitution. Widely deployed discussion about the existence of the male equivalent of female menopause mainly concerns the problems of men's sexual health. Of exceptional importance for the prediction of treatment of infertility has ovarian reserve, which is closely associated with age women. Formation of menstrual function occurs in the pubertal period of sexual development, in this age of menarche is the leading symptom of type of sexual constitution of women that do not change throughout the life hereafter. The presence of menstrual function and even ovulation does not reflect the reproductive capacity of women. Insufficient information content of the chronological age of a woman, as an indicator of the reproductive capacity of ovarian dictates the necessity of the development of tests that determine individual biological age of a woman, perhaps connected with the type of sexual constitution. In this regard, the study of sexual constitution partners is of great scientific and practical interest.

A Legal Analysis of the New Public Disclosure Obligations for Assets and Liabilities of Spouses and Dependent Children of Public Servants in India

This short academic note analyses certain legal and constitutional implications arising out of newly mandated disclosure requirements for assets held by spouses and dependent children of public servants in India under the Lokpal and Lokayuktas Act, 2014 and subsidiary rules framed thereunder. Some of the important issues examined in the note include those related to privileged nature of spousal communications, legal responsibilities of parents and guardians with respect of their wards, and potential derogation of the confidentiality of disclosures made by spouses and dependent children of public servants.

International Criminal Court in the Trenches of Africa

The pursuit of international criminal justice in Africa through the International Criminal Court (ICC) platform has not been without hitches. There is a rift between the African Union (AU), as a continental body, and the ICC owing to the AU’s perception that the ICC is pursuing selective justice and the AU’s misgivings about the ICC’s indictment/trial of some sitting heads of states in Africa. This article argues that the claim of selective justice cannot be dismissed because it undermines the regime of international criminal justice. The indictment/trial of serving heads of states also has serious constitutional and political implications for the countries involved, but this has been ignored in the literature. Further, the hitches arise both from the failure of the ICC to pay attention to the domestic contexts in order to harmonize its operations in the places of its interventions and from the inherent weakness of the ICC as a criminal justice system. The ICC, on its part, insists that any consideration given to the domestic contexts of its operations would undermine it. Yet the ICC’s interventions in Africa have had serious political, legal and social implications for the communities involved, jeopardizing the peaceful equilibrium in some cases. This should not be ignored. Using the law to stop and prevent international crimes in African societies would require a concerted effort by all concerned to harmonize the demand for justice with the imperatives on the ground.

Comments on the Preliminary Set of Provisions for the Rules of Procedure of the European Unified Patent Court

This is my response to the public consultation on the rules of procedure (the 15th draft) for the European Unified Patent Court (UPC) that the UPC Committee conducted between June and September 2013. The focus is put on constitutional implications and conflicts of interests.The key points are: a) lack of a reliable impact assessment study; b) the scope of UPC’s judicial competence in light of Article 345 of the Treaty on the Functioning of the EU and member states’ sovereignty to determine proprietary rights; c) language discrimination as a barrier to the internal market (i.e. freedom to provide legal services); d) violation of national and European human rights guarantees, on the grounds of bifurcation and language discrimination; e) conflict of interests surrounding the Committee of the UPC Rules of Procedures and the criteria for the selection of UPC judges.

The NSA Has Not Been Here: Warrant Canaries as Tools for Transparency in the Wake of the Snowden Disclosures

Technology companies are increasingly experimenting with “warrant canaries” as a means of increasing transparency around the national security orders they receive. A warrant canary is a statement that a company regularly publishes, declaring that the company has never received a national security order. Should the company stop publishing the statement, the public can infer that the company has received such an order. This paper explores the constitutional and practical implications raised by this practice. It examines the various types of canaries that companies have used thus far, and proposes best practices for companies going forward. It also argues that canaries are protected by the First Amendment, and that any order compelling a company to publish a false canary must survive strict scrutiny, if not an even more exacting standard of review. Ultimately, this paper advocates for a company committed to transparency to adopt and litigate a test canary to establish that canaries can be lawful tools.

Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings

This Article examines the constitutional implications of legislation to bring pre-1972 sound recordings under federal copyright protection (referred to hereafter as “federalizing legislation”). In particular, we consider whether such an amendment could violate due process or constitute a taking pursuant to the Fifth Amendment of the Constitution. Using the Copyright Office’s approach as a springboard, we consider the issues that would likely arise under any federalizing legislation. These issues, however, have implications far beyond the context of federalizing legislation for pre-1972 sound recordings. Given the proliferation of assets subject to intellectual property laws and the increasing role those assets play in the U.S. economy, the questions addressed in this Article may bear on Congress’ overall ability to amend those laws.

Teaching United States v. Windsor: The Defense of Marriage Act and Its Constitutional Implications

Journal of Legal Studies EducationVolume 31, Issue 2 p. 249-289 Article Teaching United States v. Windsor: The Defense of Marriage Act and Its Constitutional Implications Corey Ciocchetti, Corey Ciocchetti Associate Professor, Department of Business Ethics and Legal Studies, University of Denver.Search for more papers by this author Corey Ciocchetti, Corey Ciocchetti Associate Professor, Department of Business Ethics and Legal Studies, University of Denver.Search for more papers by this author First published: 23 July 2014 https://doi.org/10.1111/jlse.12016 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume31, Issue2Summer 2014Pages 249-289 RelatedInformation

The Hate Threshold

Hate crime laws have emerged within a climate of penal expansion and identity politics. They contain ideological claims designed to reconfigure social norms and regimes of difference. This article employs the concept of the hate threshold to examine the principles and practices that turn an ordinary crime into a hate crime and the normative messages that flow from this. The hate threshold takes three major elements – emotion, causation and difference – as a framework for analysing how the legal rules are operationalised. Analysis of Australian sentencing aggravation law reveals that courts have set a relatively rigorous standard for offender sentiment and causation. However, the development of a more fluid threshold around the element of difference raises questions about the constitutive implications when law ‘misfires’. This analysis of the law in action provides a material foundation for reflecting on the capacity of hate crime law to engage in larger processes of remoralisation.