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  • T Khaitan and Sandy Steel, 'Areas of Law: Three Questions in Special Jurisprudence' (2022) Oxford Journal of Legal Studies (forthcoming)
    This paper addresses three fundamental questions about a key phenomenon in special jurisprudence: ‘areas of law’: (i) what is an area of law; (ii) what are the consequences of dividing law into distinct areas; and (iii) what constitutes the foundations of an area of law. It claims that (i) “an area of law” is a set of legal norms which are intersubjectively recognised by the legal complex as a subset of legal norms in a given jurisdiction; (ii) the sub-division of law into multiple areas matters to the content and scope of legal doctrine, to law’s perceived legitimacy, and possibly to its effectiveness; and (iii) the search for the normative foundations of an area of law is typically an inquiry into its ‘aims’ or ‘functions’. The contribution of this paper is in systematically articulating, explaining, and answering these three questions generally, i.e. in relation to areas of law as such.
  • S Atrey and S Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press 2022)
  • S Atrey and S Fredman, 'Exponential Inequalities: What can Equality Law?' in S Atrey & S Fredman (ed), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press 2022)
  • S Atrey and G Bhatia, 'Gender and Transformative Constitutionalism in India' in Wen-Chen Chang, Kelley Loper, Mara Malagodi, Ruth Rubio-Marín (ed), Gender, Sexuality and Constitutionalism in Asia (Hart 2022)
  • T Khaitan, 'Guarantor (or 'Fourth Branch') Institutions' in Jeff King and Richard Bellamy (eds), Cambridge Handbook of Constitutional Theory (CUP 2022) (forthcoming)
    Guarantor institutions (such as electoral commissions and anti-corruption watchdogs, which supposedly comprise the so-called ‘fourth branch’ of the state) are increasingly of interest to constitutional scholars. In a given political context, a guarantor institution is a tailor-made constitutional institution, vested with material as well as expressive capacities, whose function is to provide a credible and enduring guarantee to a specific non-self-enforcing constitutional norm (or any aspect thereof). Arguing that guarantor institutions are more trustee-like than agent-like in character, this chapter defends the following (relatively thin) principles that should, pro tanto, inform their design: (i) the interests of guarantor institutions and of their personnel should be compatible with the constitutional interest in the relevant norms being respected; and (ii) guarantor institutions should have sufficient (expressive and material) capacities as well as adequate (interactional and contributory) expertise necessary for the performance of their specific duties in relation to the norm being guaranteed. (iii) conflicted actors (including partisan actors) should be incapable of unilaterally changing or unduly influencing any institutional, personnel, or operational feature of a guarantor institution; and (iv) (at least in democratic contexts,) guarantor institutions should be politically accountable to committees constituted on the basis of weighted multipartisanship, i.e. committees in which political seats are allocated to legislative parties by overweighting the strength of smaller/minority/opposition parties and underweighting that of larger/majority/ruling parties in a manner that would ordinarily require significant measure of cross-party support for decisions.
  • J Beqiraj and R Mackenzie-Gray Scott, Mutual Legal Assistance in Criminal Matters in the UK and in Developing Countries: A Scoping Study (Bingham Centre for the Rule of Law 2022)
  • M Niezna, 'Paper Chains: Tied Visas, migration policies and legal coercion' (2022) 49 Journal of Law and Society 362
    ‘Tied visa’ regimes are labour migration policies that condition migrants’ visas on employment with a particular employer, thus restricting their access to the labour market. This article considers how, under such regimes, control by the state shapes control by employers, and investigates the resemblance between official migration control policies and private means of control and coercion, amounting to forced labour and trafficking. The discussion includes the theoretical analysis and empirical consideration of a case study: the Israeli tied visa regime, regulating migrant workers and Palestinian workers. The consideration of two groups of non-citizen workers, subject to different but related regimes, enables a novel analysis of the coercive impact of common labour migration policies, and of the justifications offered for such policies. The Israeli Supreme Court demonstrated some commitment to constitutional principles protecting non-citizens, but later withdrew from these principles and justified tied visas on the grounds that they serve the perceived public interest.
  • Ch. Kypraios Kypraios, The Socioeconomic Rights Obligations of States and IFIs during Sovereign Debt Management (Springer 2022) (forthcoming)
  • E. Fasia and Ch. Kypraios Kypraios, '‘SDG 14: Life Below Water. Conserve and sustainably use the oceans, seas and marine resources for sustainable development’' in I. Bantekas and F. Seatzu (eds), Commentary on the Sustainable Development Goals (OUP 2022) (forthcoming)
  • 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.