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  • 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, 'On the Central Case Methodology in Discrimination Law' (2021) Oxford Journal of Legal Studies
  • 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.
  • Thiago Alves Pinto, 'An Empirical Investigation of the Use of Limitations to Freedom of Religion or Belief at the European Court of Human Rights' (2020) 15 Religion & Human Rights 96
    DOI: https://doi.org/10.1163/18710328-BJA10005
    Most literature on freedom of religion or belief argues that there should be a high threshold for the imposition of limitations to the manifestation of the right. However, the practice of the European Court of Human Rights shows that the bar is much lower than academics suggest. This article explores this issue by analysing a plethora of cases and on the basis of interviews with lawyers connected to the Court. While the Court often considers the requirements of legality, legitimacy, and necessity, it does so briefly; focusing mostly on the analysis of proportionality and the margin of appreciation to the State in question. This approach makes the decisions exceedingly subjective and leads to little legal certainty in the area. Therefore, it is suggested that if the Court would analyse all criteria to impose limitations strictly, it could become more efficient while providing greater protection for persons to manifest their religion or belief.
  • Thiago Alves Pinto and Rodrigo Vitorino Souza Alves, 'Investigations on the Use of Limitations to Freedom of Religion or Belief in Brazil' (2020) 15 Religion & Human Rights 77
    DOI: https://doi.org/10.1163/18710328-BJA10004
    The present article analyses cases from top Brazilian courts and has received contributions from several scholars, practitioners, and public officials to better understand the use of limitations to freedom of religion or belief in the country. The Brazilian Constitution provides for the right to freedom of religion or belief as a fundamental right, and other domestic legislation regulates the right, including those implementing international human rights treaties that Brazil has ratified. These laws are easily accessible. Nevertheless, domestic courts seldom rely on such international instruments or the case-law of international bodies in their judgments. Therefore, although these instruments are in force in Brazil, domestic courts do not expressly use or refer to the clauses of permissible limitations of the relevant international and regional human rights instruments, creating a scenario with low levels of legal certainty for those seeking the protection of the right to freedom of religion or belief.
  • TAO Endicott, 'Authentic Interpretation' (2020) 33 Ratio Juris 6–23
    I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the law maker. The idea that authentic interpretation is interpretation by the law maker united the Roman Emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the early 17th century, a new modern approach was emerging in England. The modern approach separates the interpretive power from the legislative power, and allocates the interpretive power to an independent court. I will argue that there are some cogent, general considerations in favour of the modern approach. But it is worth identifying the elements of good sense that made it seem that the interpretive power ought to be reserved for the law maker. And it is worth identifying the drawbacks in the modern approach; they are relevant to the complex question of how judges ought to interpret.
    ISBN: 1467-9337
  • S Atrey, 'Beyond Universality: An Intersectional Justification of Human Rights’ ' in S Atrey and P Dunne (eds), Intersectionality and Human Rights Law (Hart 2020)
  • C O'Regan, 'Contemporary challenges for human rights: a view from South Africa' in Simon Mount and Max Harris (eds), The Promise of Law: Essays marking the retirement of Dame Sian Elias as Chief Justice of New Zealand (LexisNexis 2020)
    ISBN: 9781988546070
  • S Atrey, 'From Me to We: Locating Dalit Women in #MeToo' in A Noel and D Oppenheimer (eds), Globalization of the #MeToo Movement (Fastcase 2020)
  • TAO Endicott, 'How Judges Make Law' in Elizabeth Fisher, Jeff King, and Alison Young (eds), The Foundations and Future of Public Law (Oxford University Press 2020)
    Unlike statute law, case law is not ordinarily made through actions designed to make law. The central purpose of a court is resolution; the court achieves it by giving judgment in a particular case. For judges to make law well, it is enough if they do well at their primary task of giving a ruling in the case. They make law incidentally because of the effect the law gives to their rulings. That feature of case law, along with its open-endedness and revisability, seems to support the view that it is not law at all, or that if it is law, law must be something that springs from the imagination of the judge. This chapter explains why these aspects of judicial law making accord with the view that case law, like statute law, is a set of rules made valid by their sources in past decisions.
    ISBN: 9780198845249
  • TAO Endicott, 'Human rights and the executive' (2020) 11 Jurisprudence 597
    DOI: 10.1080/20403313.2020.1833587
    The executive is the agency of government with the most effective capacity to violate human rights, and its role in the law of human rights seems to focus on its subjection to the constitution, to legislation, and to the order of a court. For a symposium on Webber, Yowell, Ekins, Köpcke, Miller and Urbina, Legislated Rights (CUP 2018), I argue, instead, that respect for human rights –and good human rights law as well– depends on the active role of the executive branch. For a state to respect human rights, perfect executive compliance with the constitution, with legislation, and with judicial orders is not enough; it takes the active initiative of the diverse variety of executive agencies to take the lead in specifying the requirements of human rights and giving them effect. This is true partly because of the crucial role of the executive in legislation, and partly because, if the executive has a general contempt for human rights, the courts will be incapable of remedying the resulting abuses. The fundamental importance of the executive lies at the point of action in support of vulnerable persons, where the requirements of respect for human dignity get their ultimate specification from the act of a nurse, or a police officer, or another executive agent.
  • S Atrey, 'Intersectionality and Comparative Antidiscrimination Law: The Tale of Two Citadels' (2020) Brill Research Perspectives in Comparative Discrimination Law
  • S Atrey and P Dunne (eds), Intersectionality and Human Rights Law (Hart 2020)

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