neděle 23. srpna 2015

Soudní novinky 15-34 (Mazat, či nemazat?)

Dnes nejen o rozsudcích, ale také o soudech, soudcích a ústavách v širších souvislostech.

  • New Hampshire federal court: Prohibition against distributing ballot photos is unconstitutional: "the “secret ballot.” It’s not constitutionally mandated — at least, not in the federal constitution, though in some states it is expressly required — and I was surprised to learn that it only came into widespread use in this country in the late 1800s (..). federal district court in New Hampshire, invalidating a New Hampshire statute that prohibited “taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means … with the intention of letting it be known how he or she is about to vote or how he or she has voted." (..) the statute could not survive the “strict scutiny” required by the First Amendment for “content-based” prohibitions of this kind."
  • Zajímavá úvaha Benjamina Perrymana na téma mazání digitální stopy po kandidátech na nejvyšší soudcovské posty: "(..) efforts have been made to modify the digital footprint of Canada’s newest Supreme Court of Canada appointee, Justice Russell Brown, who was a prolific blogger when he was a law professor at the University of Alberta. An intense debate ensued on the propriety of appointing a judge with such publicly held and provocative views. But the real problem is not the prior public posts of a judicial appointee, but rather that we lack clear and transparent rules for when a judicial appointee’s digital footprint can be deleted with integrity. In the absence of such rules, efforts to modify a judicial appointee’s digital footprint risk harming public confidence in the judiciary."
  • Edward Rubin: Incoherence of Court’s dissenters in same-sex marriage ruling - nic moc nového se tu nedočtete, ale na druhou stranu se jedná o svižný kousavý pohled na disentéry a jejich výtvory v Obergefell: "It’s not their position, their basic arguments, or even the intellectual weakness of those arguments (there is, after all, no principled basis for opposing government recognition of same-sex marriage). It’s the incoherence, insensitivity, and generally hysterical quality of those opinions that provide the drama in this important but widely-predicted decision."
  • Krátké shrnutí politologického bádání o tranzitivní spravedlnosti a něco nového k tomu: Wendy Wong: Opting for Trials Post-Conflict? Why the Structure of Losers Matters. "trials are not simply an internationally imposed outcome, but a political choice taken in light of various pressures from external actors, to be sure, but also internal considerations. Some of our research addresses the question of under what conditions post-conflict should we expect “the winning party” (i.e. now, the government) to try “the losers” (i.e. their former opponents)? (..) what really matters is how the losers were structured. Centralized oppositions can mount more effective resistance both in terms of lethality, but also in terms of giving and receiving orders; centralized commands have a higher expectation that their strategies will be followed all the way down the chain. (..) winners are more likely to use trials against centralized losers, that is, losers that were more vertically-organized during the conflict, because of their organizational structure. This runs counter some of the findings in the transitional justice literature."
  • Nové poznatky o vztahu mezi ústavodárným procesem a kvalitou demokracie - rozhoduje úvodní fáze! Crafting a new constitution doesn’t necessarily lead to democracy. Here’s what does (Eisenstadt et al.): "Does writing a constitution lead to democracy? Sometimes—but not always. Post-Arab Spring, citizens of Egypt and Morocco ended up with “hybrid” regimes that mix some features of democracy with authoritarianism, as has been happening around the world. But in neighboring Tunisia, the new constitution did usher in profound democratic change. (..) we studied 138 countries that had adopted new constitutions between 1974 and 2011. Three years after those constitutions were in place, 62 countries were more democratic—but 70 others were either less so or no better than before. In getting to democracy, we found, how the new constitution is crafted is as (or more) important as the language in its text. (..) level and depth of popular participation consistently makes the difference in whether that country ends up a democracy. (..) Democracy grows most fully, we found, when many different kinds of people help in the first phase: drafting a constitution. Bringing everyone in—from the business elites to the pushcart vendors, from conservatives to liberals, from constitutional lawyers to illiterates—while actually writing something is critical."

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