1,721,058 research outputs found
Concluding remarks: internet law, protection of fundamental rights and the role of constitutional adjudication
No full textThe essay deals with the constitutional dimension of internet disputes from a comparative perspective
Challenging political equality in electoral legislation: the case of the US Supreme Court
No full textThe chapter analyses the adjudication of electoral
issues by focusing on political equality as understood by the United States (US)
Supreme Court in the past few decades. Possibly due to its nature as a competitive
democracy, the US has struggled to overcome a formalistic interpretation
of the principle of political equality which is frequently frustrated in practice. 3
The deference towards elected institutions ’ policy determinations in this matter
often translates into a tolerance of incumbents ’ entrenchment, with a substantial
effect on political equality. Such deference is based on the assumption that
remedies to incumbents ’ entrenchment can only be found in the political process
as traditional patterns of separation of powers cannot be altered by countermajoritarian
institutions
Citizenship in the Age of Globalization
No full textThe article deals with social rights enjoyed by non-citizens in European countries. The author argues that the enjoyment of social rights is unavoidable to build up a path towards the full citizenship status
La garanzia dei diritti sociali tra "autosufficienza nazionale" e tutela sovranazionale
No full textThe essay aims at exploring the multilevel protection of social rights. Starting with the analysis of European Court of Human Rights case law, the Author develops a study on methods of judicial argumentation as well as on models of scrutiny attached to social claims. The analysis is carried out with the use of three key-factors: a) the structure of the social claim; b) the kind of scrutiny attached to the violation of such a claim; c) the level of justiciability of resource allocation decisions. The Author argues that both Constitutional and supranational Courts should be involved in the protection of social rights and ultimately both Courts can share a “minimum standard of scrutiny” over social rights claims
The Italian constitutional reform of 2016: an 'exercise' of change at the crossroad between constitutional maintenance and innovation
Full text linkThe essay analyses the Italian Constitutional Reform of 2016, starting from provisions concerning the frame of government and specifically the overcoming of the Italian model of ‘perfect bicameralism’. The essay then explores the reform of the relationships between the State and the Regions, which were successfully reorganised in 2001 but still occupy the most significant part of the Constitutional Court litigation load. The last part of the analysis is devoted to the provisions amending the Italian system of Constitutional adjudication and specifically to the introduction of a form of contrôle préventif on electoral laws. Finally, the Author provides some conclusions about the 2016 reform as an example of ‘manutenzione costituzionale’
Il conservatorismo costituzionale di Neil Gorsuch: original understanting e diritti civili nell’era di Trump
No full textThe article analyses the figure of Neil Gorsuch, who has been recently nominated to the Supreme Court and waits for Senate’s confirmation hearing. The work addresses Gorsuch’s legal philosophy in light of the ideological positioning of the rest of the Court. The Author argues that Gorsuch’s originalism needs to be analysed within his broader understanding of the role of the judges, especially in the adjudication of constitutional cases
The damages regime for human rights infringements in Italy
No full textThe chapter deals with the Italian regime of damages for infringements of human rights. It analyses the regime for infringements of constitutional rights as opposed to the regime applicable to the infringements of human rights. The Author finally argues that if considered from an overall perspective, the general picture of the regime of State's liability resembles a patchwork in which each piece forms a composite framework (state's liability for violations of human rights; state's liability for violations of constitutional rights and state's liability for historical violations) , and which ultimately can only function properly if constituent parts are joined up with one another
The Supreme Court’s debate on constitutional interpretation under Trump presidency
Full text linkThe essay explores how the debate on constitutional interpretation evolved in the four years of Trump Presidency thanks to the contribution of Justices appointed
by the outgoing President. To this end, the essay addresses Justices’ arguments, with a view to detect their stance on constitutional interpretation within the broader context of the Court’s debate on the matter. The Author argues that the newly appointed Justices’ views on constitutional interpretation impacts especially on two issues that are far from being settled within the Court: a) the relationship between originalism and textualism and b) the interplay between theories of constitutional interpretation and the principle of stare decisis in constitutional case law
What’s wrong with depoliticization?
Full text linkThe tension between the cosmopolitan vocation of the economy and the national character of politics has lately reached a considerable level of pressure, as control over some political economic determinants of growth has been gradually acquired by EU institutions at the expenses of national political communities. In his book “Authoritarian Liberalism and the Transformation of Modern Europe”, Michael Wilkinson calls this development a ‘depoliticization’ of fundamental decisions concerning economic and socio-economic relationships, a process which has culminated in the Maastricht Treaty. In my comment, I intend to explore the argument concerning depoliticization, by examining the relationship between economy and politics from a constitutional standpoint. While I agree with the author that depoliticization has been systematically translated into a political mode of screening decisions concerning economy behind the narrative of necessary and unavoidable developments within the European project, I take a difference stance on the meaning and risks of depoliticization. I shall argue that a certain form of depoliticization is intrinsic to any process of constitutionalization understood as a reflex of a political will. I then shall explain that European constitutional culture’s antipolitical prejudice may have at times transfigured depoliticization in a technique to tame and restrict disagreement
A material understanding of constitutional changes. Revisiting ‘constitutional maintenance’ doctrines
No full textThe chapter applies the concept of the material constitution to discuss theories of “constitutional maintenance”, elaborated in continental Europe to explain cases of limited and substantively guided amendments to the text of the constitution, by examining both the case law and the doctrinal debates in selected jurisdictions (including Italy, Germany and Portugal). Indeed, theories of constitutional maintenance interact with the concept of material constitution in two ways: a) they support arguments for the preservation of the essential content of the constitutional setting, which is in turn identified with the material constitution; b) they claim the need to reduce the distance between the formal and the material constitution, by supporting the incorporation of those (even marginal) changes of the material constitution that have been accepted and metabolised by the political community. The author argues that constitutional maintenance doctrines indicate that the notion of material constitution is capable of explaining the constitutional practice of some European jurisdiction. Nevertheless, some confusion on both its meaning and implication persists and suggest the need to further develop the scholarly discussion on the topic
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