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  • T Khaitan, 'A Case for Moderated Parliamentarism ' (2021) 7 Canadian Journal of Comparative and Contemporary Law 81
    In this article, I bring two key issues in constitutional studies — institutional regime type and electoral system choice — in conversation with each other, and examine their interaction through a normative framework concerning the role that constitutions ought to play in shaping their party systems. The main goal is to offer a theoretical defense (ceteris paribus) of moderated parliamentarism — as superior to its alternatives such as presidentialism, semi-presidentialism, and other forms of parliamentarism. Moderated parliamentarism entails a strong bicameral legislature in which the two chambers are symmetric (i.e. they have equal legislative powers) and incongruent (i.e. they are likely to have different partisan compositions). It has a centrist chamber whose main function is to supply confidence to the government, and a diversified chamber whose main function is to check this government. The confidence and opposition chamber is elected on a moderated majoritarian electoral system (such as approval vote or ranked-choice/preferential vote system, but not first-past-the-post); the diversified chamber — a fully independent checking and appointing chamber — is constituted on a proportional representation model (moderated by a reasonably high threshold requirement for translating votes into seats). The confidence and opposition chamber is elected wholesale for shorter terms. It alone has the power to appoint and fire a unified political executive headed by a prime minister. The checking and appointing chamber is independent of the confidence and opposition chamber as well as of the political executive; its members have longer and staggered terms. Moderated parliamentarism combines the benefits of different regime types and electoral systems in a way that optimizes four key constitutional principles in relation to political parties: it protects the purposive autonomy of parties and enables their ability to keep the four democratic costs low; it serves the party system optimality principle by making it more likely that every salient voter type will have a party to represent it, but also distinguishes between governance parties (which are likely to dominate the confidence and opposition chamber) and influence parties (which will have a space in the checking and appointing chamber); it aids the party-state separation principle by giving significant (and over-weighted) checking powers to smaller parties in the checking chamber; and it promotes the anti-faction principle by distinguishing between smaller influence parties that are polarizing factions from those that are not factional (and punishing the latter a lot less severely than the former). The traditional debates between presidentialism and parliamentarism, and between majoritarian and proportional electoral systems have endured for as long as they have because each system brings something attractive to the table. Moderated parliamentarism seeks to combine the most attractive elements of each — checks and balance from presidentialism, continuous precarity of the political executive from parliamentarism, anti-factionalism of majoritarian electoral systems, and political pluralism of proportional representation systems. Because these virtues are in tension, no system can maximize each of them without incurring a cost for another. Moderated parliamentarism is one way to optimize the virtues of each system and yet yield a stable and effective regime type.
  • S Atrey and G Pillai, 'A Feminist Rewriting of Air India v Nergesh Meerza AIR 1981 SC 1829: Proposal for a Test of Discrimination under Article 15(1)' (2021) Indian Law Review
  • S Atrey, 'Beyond Discrimination: Mahlangu and the Use of Intersectionality as a General Theory of Constitutional Interpretation' (2021) International Journal of Discrimination and the Law [Case Note]
  • Ekaterina Aristova and Uglješa Grušić (eds), Civil Remedies and Human Rights in Flux: Key Legal Developments in Selected Jurisdictions (Hart Publishing 2021) (forthcoming)
  • S Atrey, 'Feminist Constitutionalism: Mapping a Discourse in Contestation ' (2021) International Journal of Constitutional Law
  • S Atrey, 'On the Central Case Methodology in Discrimination Law' (2021) Oxford Journal of Legal Studies
  • E. Jones, B. Kira, D. B. Garrido Alves and A. Sands, 'The UK and digital trade: Which way forward?' (2021) Blavatnik School of Government Working Papers
    The internet and digital technologies are upending global trade. Industries and supply chains are being transformed, and the movement of data across borders is now central to the operation of the global economy. Provisions in trade agreements address many aspects of the digital economy – from cross-border data flows, to the protection of citizens’ personal data, and the regulation of the internet and new technologies like artificial intelligence and algorithmic decision-making. The UK government has identified digital trade as a priority in its Global Britain strategy and one of the main sources of economic growth to recover from the pandemic. It wants the UK to play a leading role in setting the international standards and regulations that govern the global digital economy. The regulation of digital trade is a fast-evolving and contentious issue, and the US, European Union (EU), and China have adopted different approaches. Now that the UK has left the EU, it will need to navigate across multiple and often conflicting digital realms. The UK needs to decide which policy objectives it will prioritise, how to regulate the digital economy domestically, and how best to achieve its priorities when negotiating international trade agreements. There is an urgent need to develop a robust, evidence-based approach to the UK’s digital trade strategy that takes into account the perspectives of businesses, workers, and citizens, as well as the approaches of other countries in the global economy. This working paper aims to inform UK policy debates by assessing the state of play in digital trade globally. The authors present a detailed analysis of five policy areas that are central to discussions on digital trade for the UK: cross-border data flows and privacy; internet access and content regulation; intellectual property and innovation; e-commerce (including trade facilitation and consumer protection); and taxation (customs duties on e-commerce and digital services taxes). In each of these areas the authors compare and contrast the approaches taken by the US, EU and China, discuss the public policy implications, and examine the choices facing the UK.
  • T Khaitan, 'Two Facets of Religion: Religious Adherence and Religious Group Membership' (2021) 34 Harvard Human Rights Journal 231
    In this Essay, I explain the differences between the two basic human rights related to religion that are recognized by Bills of Rights the world over: the right to freedom of religion and the right against religious discrimination.
  • S Theil, 'Germany' in Liora Lazarus, Christos Kypraios, Danilo B. Garrido Alves (ed), A Preliminary Human Rights Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 27 Jurisdictions, Bonavero Report 7/2020 (Bonavero Institute of Human Rights 2020)
    This is the second extended version of a report published in May 2020 by the Bonavero Institute of Human Rights which included an analysis of Covid 19 limitation measures in 11 jurisdictions. This second updated report now includes reference to 27 jurisdictions from a wider range of legal cultures and regions covering developments up until September 2020. It also now includes an in-depth analysis of international law standards and practice.
  • S Theil, 'Unconstitutional prorogation of Parliament' [2020] Public Law 529
    Argues, contrary to the constitutional convention, that the monarch is empowered in certain situations to reject ministerial advice to prorogue Parliament. Reviews evidence for the convention on prorogation, including statutory powers and ministerial advice, and considers the constitutional implications. Examines criticisms of R. (on the application of Miller) v Prime Minister (SC), and potential remedies open to the monarch for executive abuses.
  • S Theil, 'Germany – a federal executive power grab?' (2020) UK Administrative Justice Blog
    The German Infectious Diseases Protection Act (Infektionsschutzgesetz – IDPA) is the primary federal statute regulating the fight against covid-19 in Germany. The Act has been recently amended to provide the federal government with a greater role in enforcement and expanded its authority to pass delegated legislation without the consent of the Bundesrat. The Bundesrat is representative body of the German states at the federal level whose consent is ordinarily required before any law can be enacted or amended that impacts on the state sphere of competence. This post provides an overview of the IDPA framework and highlight some initial preliminary rulings from German courts, most notably from the Constitutional Court, before turning to assessing the constitutionality of the newfound powers of the federal executive.
  • S Theil, 'Loremza Violini and Antonia Baraggia (eds.) The Fragmented Landscape of Fundamental Rights Protection in Europe – The Role of Judicial and Non-Judicial Actors (Edward Elgar, 2018)' (2020) Modern Law Review [Review]
    DOI: 10.1111/1468-2230.12500
    Lorenza Violini and Antonia Baraggia are the editors of a recent collection entitled The Fragmented landscape of fundamental rights protection in Europe – The role of judicial and non-judicial actors. The book has taken on a broad and ambitious topic in the notoriously complex and interdependent environment that is the European legal architecture, particularly in terms of relevant actors. The chapters are arranged along three broad themes: (a) the theoretical complexity of fundamental rights protection, (b) the role of courts and (c) the various roles of non-judicial actors. The book contains some outstanding contributions and generally offers thoughtful reflections on at times under researched subjects. A core challenge to overcome with such a broad topic is that it can be difficult to identify overarching themes and tease out deeper insights, thus offering readers something beyond the sum of the contributions. Unfortunately, the present collection has not been successful in this respect. The chapters stand primarily on their own terms and rarely offer insights beyond their at times narrow topics. Reflections on other chapters are rare, even where they seem to strongly suggest themselves and express engagement with the overarching topic of the book is largely absent, barring a few exceptions. The laudable mission of the book to ‘address the flaws and the challenging overlaps fostered by the fragmented and complex landscape of fundamental rights protection in Europe from a novel perspective’ (1) is thus not quite achieved.
  • S Theil, 'Germany - Federal Constitutional Court on the horizontal effect of equality rights between private parties' [2020] Public Law 181 [Case Note]
    On 27 August 2019 the German Federal Constitutional Court (FCC) rejected the application of a prominent German far-right politician alleging discrimination by a privately-owned wellness hotel. The hotel had initially confirmed the politician’s four day reservation, but then cancelled and directed the applicant to alternative accommodations in the area. Upon receiving a request for clarification the hotel banned him from entering the premises indefinitely, explaining that his vocal far-right political beliefs would inconvenience other patrons and damage the reputation of the establishment. The applicant challenged the decision before the FCC, claiming that the court’s finding that the hotel could exclude the applicant from future bookings amounted to a violation of his constitutional equality rights. The FCC found that the applicant’s desire to stay in a particular hotel was not significant to his societal participation and that the hotel was far from the only establishment in the resort town in question. Hence, it concluded there was no violation of constitutional equality rights in this case.