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German State Constitutional Courts

The Justices

Werner Reutter

Why should we be interested in how justices of German state constitutional courts are selected and elected? For three reasons: first, perceptions can be deceiving. Many believe that in Germany the Federal Constitutional Court ( fcc ) says what

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Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

David Bilchitz

These modern constitutions that have been adopted largely in the Global South enshrine a set of divergent values and rights that embrace both political philosophical concerns relating to liberty as well as distributive equality. This article seeks to grapple with the approach to distributive justice that can best give expression to the multiple normative commitments of these constitutions as well as key institutional features thereof. I argue for these societies to adopt what I term a two-tier theory of distributive justice: these theories require a set pattern or threshold to be achieved in a certain domain but also allow for a tolerable variation in resource distribution in another domain. I seek to show how two of the foremost egalitarian liberal theories of distributive justice – that of Ronald Dworkin and John Rawls – exemplify this structure as well as the resources they have to address the problems thereof. I then argue that a two-tier structure of a theory of distributive justice can help explain and reconcile key features of these modern constitutions. In particular, I shall seek to show the manner in which such theories conform to understandings of the role of a constitution, and the importance of preserving space for democratic decision-making. At the same time, two-tier theories assist in delineating the appropriate role constitutional courts should play in addressing the distribution of economic resources in society. These theories also have important implications for the role of the state and markets. Such a structure, I shall conclude, gives effect to a particular conception of equality as well as liberty and so manages to reconcile these two normative values.

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Italy toward (Yet Another) Electoral Reform

Gianfranco Baldini and Alan Renwick

The topic of electoral reform, a recurring feature of the Italian political agenda, resurfaced in 2014. At the start of the year, a ruling by the Constitutional Court returned the country to a proportional system, similar to the one in place during the First Republic. This chapter examines the key political responses to that ruling and how the decision has spurred further electoral reforms, resulting in the most majoritarian system in Italy's democratic history.

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The Campaign for an Electoral Law Referendum and the Prospects for Reform

Gianfranco Baldini

One of the consequences of the dissolution of Parliament at the beginning

of February 2008 and the announcement of a general election to

be held two months later on 13 and 14 April was the postponement

for a year of the referendum on the electoral law. A few weeks earlier,

on 16 January, the Constitutional Court had given its approval to three

referendum questions designed to abrogate several parts of the electoral

law that had been passed by the Italian Parliament in 2005. We

can better understand how this latest referendum initiative influenced

Italian politics over the course of 2007 if we take a long-term view of

the importance of electoral laws and referendums in the country.

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Corporeal performance in contemporary ethnonationalist movements

The changing body politic of Basque and Catalan secessionism

Mariann Vaczi and Cameron J Watson

Over the past ten years, the Catalan independence movement has intensified and gained considerable social support. State–region relations hit bottom in late 2019, when demonstrations and night street fights occurred as a result of the Constitutional Court decision to imprison Catalan pro‐independence politicians. In the Basque Country, a reverse process may be observed: after decades of its violent ‘Troubles’, the Basque Country now enjoys peace and channels its pro‐independence politics in formal directions. Beyond discursive messages, the Basque and Catalan movements have deployed body techniques to call attention to their political objectives. The historically changing moods and dispositions of the two movements may be traced through the corporeal performance techniques they have chosen as their symbols and allegories. The hand, palm, fist, skin, touch and verticality become ideological configurations that reproduce political imaginaries that express the dispositions, risks and desires of nationalist constructions.

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Judicial Review, Constitutional Juries and Civic Constitutional Fora

Rights, Democracy and Law

Christopher F. Zurn

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata.

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Bank Foundations: An Attack Fought Off?

Renzo Costi

The year 2002 will remain an important year in the continuing story

of Italian bank foundations, non-profit-making institutions that dispose

of considerable assets and that continue to play an important

role in the Italian financial world. The 2002 Finance Act (law no. 448

of 28 December 2001), which came into force on 1 January of that

same year, aimed to change the nature of these bodies, entrusting

control over them to the political sphere, while at the same time

postponing the moment when the foundations were to divest themselves

of control by the banks. The same year saw a series of strong

political clashes over these new regulations. The government introduced

measures that were heavily criticized by the Council of State

and were then appealed against before judicial authorities, which

partially suspended the efficacy of the said measures. Finally, the

new regulations, which were suspected of being anti-constitutional,

have now been submitted to the ruling of the Constitutional Court.

The new finance act, which came into force on 1 January 2003, has

also modified certain sections of the regulations introduced by the

2002 Finance Act.

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Herr or Hüter of the Constitution?

The First Fifty Years in the History of the German Federal Constitutional Court

Manfred H. Wiegandt

Justin Collings, Democracy’s Guardians: A History of the German Federal Constitutional Court 1951-2001 (Oxford: Oxford University Press, 2015) Reviewed by Manfred H. Wiegandt, Attorney, Wareham, Massachusetts In many ways the German

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Germany United?

Trust in Democratic Institutions Thirty Years after Unification

Ross Campbell

unified Germany.” 14 This study adjudicates between these perspectives by focusing on trust in the major representative and judicial institutions of the state 30 years after unification. Four institutions are selected: the Federal Constitutional Court

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Arctic Indigenous Peoples and Intellectual Property Law

Anatoly N. Sleptsov, Irina A. Sleptsova, Antonina A. Vinokurova, and Alina A. Nakhodkina

, but also in the constitutional court. In Northern Europe, for example, a 2016 court decision in Norway in favor of a member of the indigenous Sami people, who refused to comply with the authorities’ order to obligatorily reduce the number of reindeer