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The "Horizontal Effect" of Constitutional Rights

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... 68 Therefore, the constitutional goals of equality and the clear emphasis on the protection of marginalized sections through representation must inform the idea of "merit" in the appointment of judges. 69 The implication here being that there is no concept of merit, or traits desirable for attaining a particular goal, that exist in isolation. To the contrary, what is meritorious and what is not is intrinsically linked to the underlying social context. ...
... Consequently, for the Indian judiciary to be considered meritorious, it must necessarily be diverse. 62 67 MP Singh, '"Merit" in the Appointment of Judges' (1999) 8 SCC Journal 1. 68 ibid 8. 69 ibid 12. ...
... 68 Prohibiting any form of subsidies if the fish stock is overfished, the draft agreement failed to note the lack of capacity and technological know-how as well as the inability to monitor and measure the stock of fish amongst the vulnerable fishing communities of the developing and the least developed countries. 69 On the other hand, Section 4.3 of the AFS enables Members to continue providing subsidies affecting stocks that are overfished for rebuilding the stock to a biologically sustainable level. 70 As noted earlier, advanced nations have been subsidising HSF which has led to overfishing and IUU in high seas. ...
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Conflicts between privacy and freedom of expression usually arise where non-state actors like the paparazzi publish photographs of individuals, relying on the claim of public interest or that the individual being a public figure has forfeited his/her privacy interest. The legitimacy of such claim must be decided by the courts by balancing the two fundamental rights of privacy and freedom of press. Fundamental rights regulate the relationship between individuals and the State, whereas the conflict between these rights of privacy and paparazzi press pertains to non-state actors. The article delves into the horizontality question between the two fundamental rights, focussing on the ‘indirect horizontal effect’ as a solution; and further examines the balancing of privacy interests with public interests, proposing parameters that may be considered as part of the balancing test.
... In many jurisdictions, judicial agencies, in the process of adjudicating disputes between private parties, have integrated awareness of constitutional rights as constitutional values that need to be applied when explaining the rules of private law. As reflections on these realities, there have been many studies around the world on the impact of constitutional rights on private law under different names such as "horizontal effect of fundamental rights" [5][6][7], "constitutionalisation of private law" [8,9]. This new trend requires the need to comprehensively and systematically identify, analyse, and evaluate basic legal issues about the validity of constitutional rights in private law from both perspectives: vertical effect in the relationship between the State and citizens and horizontal effect in the relationship between private subjects. ...
... This article serves as a development of the emerging discussion on horizontal effect in Vietnam. The authors aim to evaluate how the horizontal effect of fundamental rights [5] and the constitutionalisation of private law [8] could be conceptualised and applied in Vietnamese jurisprudence. The methods of this study include both traditional doctrinal research and empirical research (survey and interview). ...
... In other words, this model, in principle, does not recognise the horizontal effect between private parties. This only vertical effect (the Constitution binds only governmental actors and not private individuals) [5] is confirmed by the wording of the US Constitution (the Fourteenth Amendment) and some cases [20]. The state action doctrine only recognises the vertical effect of constitutional rights: "[m]ost of the protections for individual rights and liberties contained in the Constitution and its Amendments apply only to the actions of governmental entities" [21]. ...
Article
Private law has traditionally followed a separate mindset of rights, which is not necessarily related to the constitution. With the rise of constitutionalism in the world, thinking about constitutionalism and fundamental rights has spilt over into private law. The constitutionalisation of private law (or the horizontal effect of constitutional rights on relations between private actors) is one of the important topics that attract scholarly attention around the world. It can be seen that the modern history of the horizontal effect of constitutional rights has more than 60 years of development. However, in Vietnam, the topic of the effect of constitutional rights in private law has just been raised recently among legal scholars. This article serves as a development of the emerging discussion on the horizontal effect in Vietnam by providing a general conceptualisation and a brief history of the horizontal effect of constitutional rights in the world. The article also proposes the identification of horizontal effect paradigms in countries/jurisdictions and suggests implications of the horizontal effect for Vietnam.
... This was not merely a matter of housing codes or statutory law, nor part of a specific list of citizens' duties in the constitution. Rather, this was an extension of existing constitutional rights so that the landlord now shared the obligation to uphold another's constitutional right to dignity in housing. 1 While a number of scholars have examined horizontality in legal literatures (Woolman and Davis 1996;Gardbaum 2003;Preuss 2005;Clapham 2006;Kumm 2006;Chirwa 2008;Liebenberg 2013;Nolan 2014;Frantziou 2015;Hailbronner 2017;Bhatia 2023), precious little on this practice exists in political science (see Mathews 2018 for one example). No prior scholarship considers in a large-n study why, when, and how constitution-makers would adopt horizontality provisions that allow for the extension of constitutional obligations to private actors. ...
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How might constitution-makers write “transformative constitutions”? Scholars and policymakers have looked to constitutional design as a mechanism for societal change, for example, promoting democracy, equality, and social rights. In these efforts, accountability has most often been limited to government actors. Yet, constitution-makers are increasingly introducing the “horizontal” application of rights, a potent tool for transformation whereby private actors also gain constitutional rights obligations. We argue that a key predictive element in introducing this mechanism is a meeting of the minds in constitution-making processes, where interests and mutual commitments from a broad cross-section of society are expressed at the negotiating table. We test our theory, employing cross-national data concerning the adoption of horizontal application over time, and examples from specific countries’ experiences. Our findings support our theory, suggesting that powerful articulation of interests by expert professionals in inclusive processes is a significant factor in reshaping citizen duties and, thus, transforming society.
... 110 Gardbaum claims that all US law is 'directly and fully subject to the Constitution' and individual rights provisions have a substantive indirect effect on the lawful behavior of individuals. 111 While this argument does allow for a more positive view of US as for the first question, all in all it seems that the 4 th Amendment could not be used as grounds for successful litigation in a horizontal dispute against a GOS provider. ...
... At the same time, control mechanisms similar to those developed to counteract the dysfunctionalities of the various coordination mechanisms in these fields are not in place for platforms: the platform as a coordination mechanism has not yet been subjected to these rules. The new platform law, which will be discussed here, is essentially an effort by the legislators now trying to create these mechanisms, based on the closest analogues: constitutional law, data 15 Some examples from the rich literature : Gardbaum 2003;Phillipson 1999;Tushnet 2003. 16 Shelley v. Kraemer, 334 U.S. 1 (1948). ...
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This paper discusses the recently emerging platform law from a jurisprudential point of view. After defining the platform as a general coordination mechanism, it deals with topics such as the rationale for regulation, its main goals, and its general characteristics. According to the study, the main argument for regulation is that the platform, as a coordination mechanism, tends to become unstable without intervention, or to become harmful from the point of view of society. Above all, it tends to abuse the asymmetric power situation that exists between the platform and its users. These conditions must be prevented from occurring, and platform users must be protected in certain situations. The study lists four features that characterise platform law: its ex ante regulatory nature, the predominance of technology regulation and self-regulation, and the extensive use of user protection tools, such as complaint mechanisms, protection of user accounts, and explainability obligations. This toolbox partly resembles the long-established methods of consumer protection, but it also differs from it in certain ways.
... 7 BVerfGE 128, 226/244-Fraport. Un estudio comparado es realizado por Gardbaum (2003) y Espinoza y Rivas (2022). En cuanto la controversia en la doctrina norteamericana, acerca del juicio de ponderación o balancing, véase Chemerinsky (2019: 559). ...
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El auge de los derechos individuales ha tenido lugar a costa de algunos de los elementos fundamentales del sistema de protección jurídica. La máxima utilidad individual sirvió para justificar la inmunidad del individuo frente a los derechos de los demás y, en lugar de los deberes recíprocos de los individuos, se atribuyó al Estado la titularidad de los deberes de protección y no interferencia. Nos preguntamos si es el Estado el verdadero titular de la obligación correlativa de los derechos constitucionales. Por otra parte, es objeto de controversia cuál es el papel que juegan los intereses generales en el derecho privado. Sostendremos que la estructura del sistema de protección jurídica del individuo no puede reducirse al tradicional esquema entre los derechos individuales y el Estado, sino que debe comprender además como elementos correlativos a los deberes sociales y públicos de cada uno.
... Our proposal offers a shift in understanding human rights, which have been historically seen, within human rights law, mainly as protecting citizens against the state, while we are extending them to protect against actions taken by AI. In some, mainly European, jurisdictions, the horizontal effect of constitutional human rights (Gardbaum, 2003) already enables their direct application to non-state actors as duty bearers. In line with this practice, an extension to AI is natural and arises from the increasing need to protect humans from potentially powerful autonomous machines. ...
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If autonomous AI systems are to be reliably safe in novel situations, they will need to incorporate general principles guiding them to recognize and avoid harmful behaviours. Such principles may need to be supported by a binding system of regulation, which would need the underlying principles to be widely accepted. They should also be specific enough for technical implementation. Drawing inspiration from law, this article explains how negative human rights could fulfil the role of such principles and serve as a foundation both for an international regulatory system and for building technical safety constraints for future AI systems. This article appears in the AI & Society track.
... Our proposal offers a shift in understanding human rights, which have been historically seen, within human rights law, mainly as protecting citizens against the state, while we are extending them to AI. In some, mainly European, jurisdictions, the horizontal effect of constitutional human rights (Gardbaum, 2003) already enables their direct application also to non-state actors as duty-bearers. In line with this practice, an extension to AI is natural and arises from the increasing need to protect humans from potentially powerful autonomous machines. ...
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If future AI systems are to be reliably safe in novel situations, they will need to incorporate general principles guiding them to robustly recognize which outcomes and behaviours would be harmful. Such principles may need to be supported by a binding system of regulation, which would need the underlying principles to be widely accepted. They should also be specific enough for technical implementation. Drawing inspiration from law, this article explains how negative human rights could fulfil the role of such principles and serve as a foundation both for an international regulatory system and for building technical safety constraints for future AI systems.
... One of the most fundamental issues in constitutional law is "the scope of application of individual rights provisions and, in particular, their reach into the private sphere." 189 With respect to individual rights, it is generally believed that both the U.S. Constitution's text and case law make it clear that the Constitution binds only governmental actors, not private individuals. 190 Under this "state action" doctrine, a plaintiff has standing to sue over a constitutional right only if they can establish that a government actor (federal, state, or local government or agency) was responsible for the violation. ...
Article
The growing trend of corporations imposing restrictions on suppliers, contractors, and customers beyond the requirements of existing laws requires rethinking the nature and impact of corporations’ private regulatory power. This trend, which this Article refers to as “Corporations as Private Regulators” (CPR), represents a paradigmatic shift in how corporations participate in the making of public policies. This Article conceptualizes the corporate CPR power as the exercise of a right of refusal to deal with counterparties. This right of refusal could be theorized as a new form of property right, whose allocation has important implications for both rights and wealth. The Article further explores the possible legal responses to CPR under various approaches, including the status quo approach, the ad hoc approach, the antitrust approach, the general CPR law approach, the property approach, and the constitutional approach. Finally, the Article analyzes the advantages and disadvantages, as well as the theoretical and practical implications, of each approach. The insights garnered through these inquiries lay the foundation for systematically tackling the CPR power.
... For instance, rights are frequently (directly or indirectly) applied to corporations engaged in privatized essential service delivery or as members of public governance fora (e.g. Bilchitz, 2022;Briffault, 1999;Clapham, 2006;Freeman, 2003;Gardbaum, 2003;Hessbruegge, 2005;Minow, 2003;Ratner, 2001). The second is the infiltration of human rights standards into domestic contract, property and corporate law, either by statute, through development of common law or through judicial interpretation (both of rights and of contractual terms). ...
Article
Given the growing role played by corporate power in urban governance, this article considers how, in structuring the interplay between corporations and the local state within contemporary urban governance arrangements, urban law can enhance public values and public accountability. Drawing on examples from different cities and legal systems, the article points to the commonality of hybrid public/private governance arrangements at city-level and highlights common challenges pertaining to coordination, democratic participation and accountability. It then engages with some of the common legal underpinnings of these challenges and considers ways in which urban law may address them. These include the shaping of urban autonomy through the legal devolution of state power, the legal structuring and regulation of urban decision-making fora and governance instruments, and the horizontal application of human rights law in local governance settings.
... 24 Anayasanın esas işlevi vatandaş için değil kanun koyucu için hukuk kaynağı teminidir. 25 Kişileri devlet için belirlenmiş standartlara tabi tutmak kişisel özerkliği zedelemekte, kamu hukuku-özel hukuk ayrımını bulanıklaştırmakta ve içtihatla ihdas edilen paralel bir Avrupa hukuku oluşturulması endişelerine mahal vermektedir. 26 Dolayısıyla özel hukuk kişilerinin kamu otoriteleriyle aynı yükümlülükler ve standartlara tabi tutulması özel hukuktaki kişisel özerkliğe zarar verecektir. ...
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Anayasal temel hakların yatay etkisi meselesi, temel hakların özel hukuk ilişkilerinde hak ve yükümlülüklerin kaynağını teşkil edip edemeyeceği ve kamu hukuku kaynaklı temel hakların özel hukuk ilişkilerine uygulanabilir olup olmadığı meselesi olarak sadece AB hukukuna mahsus olmayan, ulusal hukuk sistemlerinde de özel hukukun anayasallaştırılması veya temel hakların özelleştirilmesi gibi kavramlarla aşina olunan bir husustur. AB hukuku özelinde AB Temel Haklar Şartı’nın yatay etkisi bu makalede yatay doğrudan etki, yatay dolaylı etki ve pozitif yükümlülükler çerçevesinde ele alınmaktadır. Bu çerçevede yatay etkiye ilişkin literatürde sıkça rastlanılan lehte ve aleyhte görüşlere değinilmektedir. Yatay doğrudan etkinin unsurları olarak hak-ilke ayrımı ile konu ve kişi bakımından Şart’ın uygulanmasının kapsamı yatay doğrudan etkinin şartları çerçevesinde analiz edilmektedir. Şart’ın bütün hükümlerinin Şart’ın 52(5). maddesi anlamında hak ve ilke kategorisinde olduğuna bakılmaksızın ve ilkeleri uygulayıcı tasarruflarla sınırlanmaksızın yatay dolaylı etkiye, herkesi bağlayan zorunlu nitelikte ve AB hukuku veya ulusal hukuk tarafından daha somut ifade verilmesini gerektirmeyecek şekilde koşulsuz doğaya sahip belirli hükümlerinin ise sadece yatay doğrudan etkiye sahip olduğu vurgulanmaktadır.
... Charles Black, for example, called it "a conceptual disaster area"; 174 Erwin Chemerinsky, Stephen Gardbaum, and Mark Tushnet consider the entire doctrine unnecessary. 175 Cass Sunstein emphasizes that all law, including law applied in private relationships, is state action that must comply with individual rights. 176 The Court itself admits that its applications of the public-function and entanglement exceptions "have not been a model of consistency." ...
... 13 Principalmente bajo la Federal Activities Inventory Reform Act (FAIR) de 1998 y la Circular A-76 de la Office of Management and Budget, que determinan las actividades que necesariamente deben ser llevadas a cabo por agentes estatales, impidiendo que contratistas privados ofrezcan sus servicios en tales áreas. 14 Es la llamada state action doctrine o "efecto vertical" plasmado en los Civil Right Cases, 109 U.S. 3 (1883) y que sobrevive hasta el presente; ver Gardbaum (2003). Contrariamente, la doctrina del "efecto horizontal" de los derechos fundamentales propugna, en palabras de nuestra Corte nacional, que "'nada hay en la letra ni en el espíritu de la Constitución que permita afirmar que la protección de los llamados 'derechos humanos' -porque son los derechos esenciales del hombre-esté circunscripta a los ataques que provengan solo de la autoridad. ...
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Interbranch delegation of powers has been an issue of deep and recurrent analysis in our field; particularly, the exercise of legislative powers by the Executive branch. Conversely, the delega-tion of inherently governmental functions to private parties has received less attention. This essay tries to determine what should be understood by such, and consequently, if the transfer of certain quintessential state matters to private hands is tolerated by our legal system –and if so, under what circumstances– in light of the non-delegation doctrine, due process of law and the democratic form of government.
... En s'orientant sur un droit qui vise à rendre possible plutôt qu'à prescrire, la trial-registration est ainsi en mesure de renforcer le régime de la science face à la dynamique expansionniste du régime économique. Gardbaum (2003). 31. ...
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Sous forme de thèses, on soutient ce qui suit : 1. La notion d’effet horizontal a jusqu’à présent été développée dans le sens d’une mise en balance des droits fondamentaux individuels. Or pour pouvoir surmonter les conflits structurels les plus graves au sein de la société, il est nécessaire, justement dans le secteur privé, de renforcer la dimension collective et institutionnelle des droits fondamentaux. 2. Au lieu de se limiter à la protection contre une puissance quasiétatique au sein de la société, comme c’était le cas jusqu’à présent, la théorie de l’effet horizontal doit se dresser bien plus largement contre l’ensemble des médias de communication porteurs de tendances expansionnistes. 3. La contextualisation des droits fondamentaux ne doit pas se borner à les adapter aux particularités du droit privé. Elle doit aller plus loin et tenir compte de la normativité propre des domaines d’autonomie menacés. 4. Au lieu d’imposer des obligations de protection exclusivement aux acteurs étatiques, la théorie de l’effet horizontal doit s’attaquer directement aux menaces sociales qui pèsent sur les droits fondamentaux et activer des contre-forces sociales.
... First, a pluralist conception acknowledges that individual rights may not only have an effect on governmental actors (a "vertical" effect) but may also have an effect on private entities (a "horizontal" effect). 313 Second, a pluralist conception also acknowledges that a given conflict may require both vertical and horizontal analyses. 314 In this respect, it is important to understand that in a pluralist speech environment, vertical and horizontal effects are often entangled. ...
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Online speech intermediaries, particularly social platforms, have an enormous impact on internet users' freedom of expression. They determine the speech rules for most of the content generated and information exchanged today, and routinely interfere with users' speech, while enjoying practically unchecked power to block, filter, censor, manipulate, and surveil. Accordingly, our current system of free expression lacks one of the main requirements of a just system—the notion that no form of power is immune from the question of legitimacy. Scholarly responses to this situation tend to assign decreased weight to constitutional norms as means to impose duties on online intermediaries and promote internet users' speech, while focusing instead on other means, such as non-legal norms, legislative and administrative regulation, and technological design. This Article will swim against this current, arguing that a speech-promoting environment cannot be sustained without an effective constitutional check on online intermediaries' exercise of power. Unfortunately, existing First Amendment doctrine poses the following high barriers for structural reform: (1) the state action doctrine prevents users from raising speech-related claims against online intermediaries; and (2) an expansive interpretation of what constitutes speech serves as a Lochnerian vehicle for intermediaries to claim immunity from government regulation. This Article will discuss these doctrinal barriers as well as possible modifications to existing doctrine, which could create an environment more supportive of users' speech. However, the main contribution of this Article is a reassessment of traditional doctrinal assumptions required for the First Amendment to fulfill its speech-protecting role in the digital age. The underlying premise of traditional thinking about speech-related constitutional conflicts conceptualizes such conflicts as necessarily bipolar, speaker-government equations. Accordingly, courts and scholars ordinarily focus on asking whether “the state” is present on one side of the equation or whether “a speaker” exists on the other. This way of thinking about speech-related conflicts suffers from grave limitations when trying to cope with the realities of networks comprised of multiple speakers and multiple censors/regulators (with potential overlaps between these categories). The bipolar conception of the First Amendment is simply incompatible with the type of conflicts that pluralist networks generate. Consequently, if the First Amendment is to have a significant speech-protective meaning in the digital ecosystem, a more sophisticated analysis than the reigning bipolar conception of the First Amendment is necessary. This Article will propose such an alternative analysis, which shall be denominated a pluralist conception of the First Amendment.
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Recognizing law as a determinant of scarcity in health care is vital. This paper underscores the need for a comprehensive approach to manage scarcity beyond intellectual property, using targeted regulations to promote affordability and counter market distortions. I argue that relying on law solely to ensure democratic deliberations for resource allocation overlooks market failures and economic inequalities that contribute to scarcity. I examine different “legal determinants of scarcity” that can be used, on the basis of the right to health, to improve or positively influence the availability and affordability of health technologies through complementary policies such as direct price control, competitive procurement, competition laws, and public-private partnerships. I conclude by asserting that health care affordability must be a central positive human rights obligation in economic and health policies and that states must strive to diversify their approaches to eliminate persistent economic barriers.
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New York Times Co. v. Sullivan marcó un antes y un después en la relación de las libertades de la Primera Enmienda y el derecho de responsabilidad extracontractual por la afectación de la reputación y la privacidad derivada de la difusión de ideas. Sostendremos que la aproximación, sobre la base de una relación jurídica bipartita entre el orador y el ofendido es insuficiente. Es preciso establecer una separación entre el derecho individual del orador y el interés de la audiencia, que constituye un tercer participante. En el caso de la emisión de ideas ante una audiencia pública, sobre asuntos de interés público, estimamos que la naturaleza del interés de la audiencia es un interés general, lo cual nos lleva a repensar la ubicación de la controversia como un caso típico de derecho privado.
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New York Times Co. v. Sullivan marcó un antes y un después en la relación de las libertades de la Primera Enmienda y el derecho de responsabilidad extracontractual por la afectación de la reputación y la privacidad derivada de la difusión de ideas. Sostendremos que la aproximación, sobre la base de una relación jurídica bipartita entre el orador y el ofendido es insuficiente. Es preciso establecer una separación entre el derecho individual del orador y el interés de la audiencia, que constituye un tercer participante. En el caso de la emisión de ideas ante una audiencia pública, sobre asuntos de interés público, estimamos que la naturaleza del interés de la audiencia es un interés general, lo cual nos lleva a repensar la ubicación de la controversia como un caso típico de derecho privado.
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This book is about rights and powers in the digital age. It is an attempt to reframe the role of constitutional democracies in the algorithmic society. By focusing on the European constitutional framework as a lodestar, this book examines the rise and consolidation of digital constitutionalism as a reaction to digital capitalism. The primary goal is to examine how European digital constitutionalism can protect fundamental rights and democratic values against the charm of digital liberalism and the challenges raised by platform powers. Firstly, this book investigates the reasons leading to the development of digital constitutionalism in Europe. Secondly, it provides a normative framework analysing to what extent European constitutionalism provides an architecture to protect rights and limit the exercise of unaccountable powers in the algorithmic society. This title is also available as open access on Cambridge Core.
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This collection of essays draws together innovative scholars to examine the relationship between two legal and political phenomena: the shrinking of the state as a monopoly of power in favour of the expansion of power over individuals in private hands, and the change in the nature of rights. The authors expertly discuss the implications of the changing boundaries of state power, the legal responses to this development, its application to human rights, and re-conceptualizations of public life as obligations are handed over to private hands. This innovative book deals with an important set of problems and offers a fresh perspective of different legal themes in an integrated fashion.
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Contemporary liberal accounts of free expression are almost exclusively preoccupied with the permissible exercises of state power. Influenced by this framing, free expression guarantees under the ECHR, as well as the US and German Constitutions, focus on protecting a private sphere from state interference: what happens within that sphere is only of peripheral concern. This approach is deeply unsatisfactory, especially given the significant threats emanating from private social media platforms that shape the conditions under which individuals may express themselves online. The article argues that we should take private platforms seriously as a source of significant threats, without abandoning the distinction between private actors and the state. Private platforms that are generally open to the public should have obligations to uphold free speech in their contractual relationship to users under certain conditions: if they are structurally dominant, make arbitrary decisions or significantly impact a user's societal participation.
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This article is concerned with the extent to which corporations involved in governing South African cities and towns are bound to the developmental objectives and socio-economic rights that urban governance efforts are constitutionally required to pursue. It considers the constitutional powers of local government over such non-state actors, evaluates their co-option and accountability in terms of local government legislation and discusses the evolution of their residual "horizontal" constitutional responsibilities.
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This chapter describes a long and winding road on the Supreme Court case law in non-criminal matters, into what might characterize as a modern conception on procedural due process. It begins by describing the context that marked the transformation of the traditional approach followed by the Supreme Court into the current approach in non-criminal matters. In this regard, it focuses on the Due Process revolution as an attempt to broaden the protection of procedural due process and to search for a test to determine what is the procedure that is due once the clause is triggered beyond criminal law. Then, it describes how the case law led to the Mathews v. Eldridge test, the current approach used by the Court, and the debates that have arisen in the last decades regarding, class actions, statistical adjudication and arbitration. It also briefly addresses the right of access to a court and its relationship with the right to a due process. Finally, it explores some possible explanations and provides some future research question regarding the question on why the constitutional doctrine in civil matters has been much more recent and thinner than in criminal law issues.
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Constitutional democracies have allowed for patterns of accumulation of wealth at the top, leading to acute inequality and dangerous oligarchization of power. Moreover, the theoretical tools that liberal constitutionalism offers are inadequate to recognize systemic corruption and structural forms of domination that are enabled by law or its absence. As an alternative, the article proposes a material methodological approach to the study of constitutions. In the first section, it offers a critical analysis of the intellectual foundations of liberal constitutionalism, engaging with the right to property, political representation, and separation of powers. In the second section, it presents the intellectual foundations of plebeian constitutionalism in the works of Machiavelli, Condorcet, and Marx. Finally, it proposes a material approach to assessing constitutions, identifying the shortcomings of contemporary legal frameworks to materialize social rights, as well as new avenues for institutional anti-oligarchic innovation.
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Internet speech provides opportunities for democratic discourse but has also proven to cause harm to democracy by elevating disinformation, harassment, and extremism. Regulating power in the digital world challenges traditional understandings of freedom of expression and might require a legal response at the constitutional level. This article explores how Internet speech and freedom of expression have been addressed in three constitutional reform processes commenced after the 2008 financial crisis in Iceland, Ireland, and Norway. In all cases the novel or emerging problems involving Internet speech, and particularly the power of Internet platforms, were missed by constitutional reformers while positive aspects of Internet speech were embraced and granted constitutional protection. The experiences highlight, among other things, the importance of timing of constitutional reform: Reformers necessarily focus mostly on problems of the past but the timing of a “constitutional moment” may not be optimal to address what will become pressing problems. Reformers are constrained, or perceive themselves to be constrained, by international law and traditional constitutional law doctrine where the state is the principal risk for fundamental rights. The power of private entities, including Internet platforms, goes unaddressed, and the global scale of Internet speech, far beyond the territorial jurisdiction of constitutional law, presents various complexities.
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The FASB (Financial Accounting Standards Board, USA), IASB (International Accounting Standards Board), GASB (Government Accounting Standards Board, USA), the International Auditing and Assurance Standards Board (IAASB), Partnership for Carbon Accounting Financials (PCAF), SASB (Sustainability Accounting Standards Board, USA), the ISDA (International Swap & Derivatives Association; http://www.isda.org/) and the ICMA (International Capital Market Association; http://www.icmagroup.org/) and FINRA (USA) are among a class of very powerful trade associations that have “Quasi-Executive Powers” (similar to powers of the executive branch of the federal governments of countries) even though they are not part of the government (but are implicitly supported and encouraged by governments). IASB/IAASB/PCAF/FASB/GASB/SASB perform important rule-making functions and affect accounting regulations, companies, Climate Policy, Sustainability efforts, ESG investing, financial institutions and government regulation around the world (many foreign countries raise capital or list their shares in the US markets, and many US companies operate in foreign countries). The FASB, GASB, SASB, IIASB, PCAF, ICMA, ISDA and IASB and their standards are unconstitutional and that can affect responses to accounting/derivatives regulations and standards and general economic activity.
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Corporations can significantly affect the fundamental rights of individuals. This book investigates what legal obligations they have to respect, protect and realise these rights. In doing so, it addresses important conceptual issues surrounding fundamental rights. From an investigation of existing legal models, a clear structural similarity surfaces in how courts make decisions about corporate obligations. The book seeks to systematise, justify and develop this emergent 'multi-factoral approach' through examining key factors for determining the substantive content of corporate obligations. The book defends the use of the proportionality test for ascertaining corporations' negative obligations and outlines a novel seven-step test for determining their positive obligations. The book finally proposes legal and institutional reforms - on both the national and international levels - designed to enhance the quality of decision-making surrounding corporate obligations, and embed fundamental rights within the corporate structure and the minds of key decision-makers.
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New technologies have always challenged the social, economic, legal, and ideological status quo. Constitutional law is no less impacted by such technologically driven transformations, as the state must formulate a legal response to new technologies and their market applications, as well as the state's own use of new technology. In particular, the development of data collection, data mining, and algorithmic analysis by public and private actors present unique challenges to public law at the doctrinal as well as the theoretical level. This collection, aimed at legal scholars and practitioners, describes the constitutional challenges created by the algorithmic society. It offers an important synthesis of the state of play in law and technology studies, addressing the challenges for fundamental rights and democracy, the role of policy and regulation, and the responsibilities of private actors. This title is also available as Open Access on Cambridge Core.
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Under Common-Law principles, Multiple Listing Service (MLS), Real Estate Website (REW) laws and Rent-Control and Rent-Stabilization (RCRS) statutes in many countries are or may be unconstitutional and can significantly affect the transmission of monetary policy and fiscal policies, and may have affected the rapid changes in housing prices and housing demand that occurred in the United States and other countries between 1995 and 2010. MLS and REWs are fintech systems that are used around the world. There is an increasing and symbiotic relationship between the unconstitutionality and anti-competition effects of MLS, Real Estate Websites (REWs) and RCRS on the one hand and systemic risk and financial stability on the other. MLS, Real Estate Websites (REWs) and RCRS can have substantial effects on consumer behavior in credit and asset markets—and this can precipitate structural changes in the financial services, real estate and retailing industries. Hence, all existing housing-demand models and housing price forecast models are grossly mis-specified primarily because they do not incorporate legal factors and associated economic effects.
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This chapter explains why the present regime of real property taxation and Corporate Location Incentives in the United States, Germany/EU and many common-law countries are unconstitutional, and can negatively affect economic growth and sustainability. The inherent constitutional economics issues affect government allocations and spending, corporate spending, site selection decisions of large companies; labor dynamics; local/regional employment and economic growth, household spending, business confidence, consumer confidence, sustainable growth and so on.
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This chapter claims that investment treaty-based cases brought against Latin American countries may initially portray to what extent a re-politicisation of IIL consistent with the duty to regulate paradigm is on the rise and which reforms are required to strengthen tribunals’ recognition of this duty in ISDS. Following a case study approach, this chapter critically assesses the argumentative strategies of Latin American countries and tribunals’ review of these arguments on questions of substantive IIAs’ obligations and states’ procedural rights in ISDS. This chapter concludes that an articulation of states’ duty to regulate claimant investors’ activities in benefit of the right to water is unequivocal, while this articulation in favour of indigenous people’s right to consultation over investors’ activities likely to affect them is scant because most countries deploy non-investment arguments to challenge investors’ misconduct, rather than to justify performance of their own regulatory duties. Moreover, these cases indicate that although most tribunals still abstain from addressing inter-regime tensions, they incorporate states’ regulatory needs on substantive and procedural questions under certain circumstances. Based on this outcome, new IIAs should clearly articulate states parties’ duty to regulate and be used as regulatory instruments of protected investors’ conduct by making the OECD Guidelines and states parties’ laws the legal basis of such direct obligations. Otherwise, if states maintain IIAs that allow broad interpretation and application of states’ obligation in a way that disregard their duty to regulate, this may entail an obligation of their obligation to respect human rights.
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Nicht zuletzt durch eine Reihe von öffentlichen Skandalen wurde in den letzten Jahren die »Neue Verfassungsfrage« aufgeworfen. Menschenrechtsverletzungen durch multinationale Unternehmen, Korruption im Medizin- und Wissenschaftsbetrieb, Bedrohung der Meinungsfreiheit durch private Intermediäre im Internet, massive Eingriffe in die Privatsphäre durch Datensammlung privater Organisationen und mit besonderer Wucht die Entfesselung katastrophaler Risiken auf den weltweiten Kapitalmärkten – sie alle werfen Verfassungsprobleme im strengen Sinne auf. Ging es früher um die Freisetzung der politischen Machtenergien des Nationalstaats und zugleich um ihre wirksame rechtsstaatliche Begrenzung, so geht es nun darum, ganz andere gesellschaftliche Energien zu diskutieren und in ihren destruktiven Konsequenzen wirksam zu beschränken. Konstitutionalismus jenseits des Nationalstaats – das heißt zweierlei: Die Verfassungsprobleme stellen sich außerhalb der Grenzen des Nationalstaats in transnationalen Politikprozessen und zugleich außerhalb des institutionalisierten Politiksektors in den »privaten« Sektoren der Weltgesellschaft.
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Over the past few years, a series of political scandals have raised the ‘new constitutional question’. Multinational corporations violated human rights; private intermediaries in the internet threatened freedom of opinion, and recently, with particular impact, the global capital markets unleashed catastrophic risks — all of these pose constitutional problems in the strict sense. It is outside the limits of the nation-state in transnational politics and, at the same time, outside institutionalized politics, in the ‘private’ sectors of global society that these constitutional problems arise. The crisis in traditional constitutionalism is caused by transnationalization and privatization. The main thesis of the book is: The obstinate state-and-politics-centricity of traditional constitutionalism needs to be counteracted by a sociological approach which, so far, has remained unheard in the constitutional debate. Constitutional sociology projects the constitutional question not only onto the relationship between politics and law, but also onto the whole society. It is particularly in the so-called private sectors of world society that constitutional conflicts are emerging. Constitutionalism has the potential to counteract the expansionist tendencies of social systems outside the state, particularly the globalized economy, science and technology, and the information media, when they endanger individual or institutional autonomy. The book identifies transnational regimes, particularly in the private area, as the new constitutional subjects in the global space which compete with the nation states. It analyses transnational societal constitutions in their functions, arenas, processes, and structures. It deals with the horizontal effects of constitutional rights in situations when transnational corporations violate human rights obligations. And it suggests solutions for collisions between different transnational regime constitutions.
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This article analyses the main debates over the application of the Charter to disputes between private parties and assesses the ways in which the case law over the last ten years has responded to them. The article goes on to propose an alternative schema, whereby horizontality can be understood as a structural principle of EU fundamental rights adjudication on its own terms, rather than as an extension of the direct effect doctrine. It is argued that a self-standing principle of horizontality with equally valuable—yet operationally distinct—direct, indirect, and state-mediated manifestations, could respond more coherently to the conceptual, procedural, and remedial challenges displayed in the case law.
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In studying Social Network Sites (SNSes), this chapter starts from the identification of a loss of users’ control over personal information. It briefly defines what SNSes are and links them to “cloud computing.” Its purpose is to identify how American and European (or as the case may be, Belgian) laws empower users to recover some control where they lack technical means to control information related to them. It will be shown that user’s consent is central to numerous legal dispositions. To this end, four legal themes are studied: privacy, data protection (consent and right of access), confidentiality of electronic communications, and the prohibition of unauthorized access to computers (hacking). Through these reflections, the American and European perspectives are compared, and the differences between these inevitably lead to a final title underlying the importance of rules governing prescriptive and adjudicative jurisdictions concerns. These rules are finally sketched, before the conclusion finally summarizes the whole purpose.As the author of this chapter is a European jurist, European law constitutes the point of departure of the reflections, and can be sometimes (titles I and IV) the sole legal framework of the discussion. The information in this chapter is current up to January 28, 2010, save as otherwise stipulated. It should be noted that the information that is studied in context is constantly changing.
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Abstract: There are so many conflicts between companies and workers, and these conflicts often end up in court. At certain moments workers are declared winners and the company is obliged to pay the right to obligations as a provider of labor. Workers hope to receive all rights and be protected by law which can overshadow and protect the existence of workers, both individually and as a group. This research uses descriptive qualitative research methodology and refers to the 1945 Constitution of the Republic of Indonesia as the main legal foundation and other laws and regulations. Keywords: Legal Protection, Constitutional Rights, Workers' Rights Аннотация: Существует много конфликтов между компаниями и работниками, и эти конфликты часто заканчиваются в суде. Бывают случаи, когда работники объявляются победителями, и компания обязана оплачивать права по обязательствам как работодатель. Рабочие надеются получить все свои права и быть защищены законом как индивидуально, так и в составе группы. В этом исследовании используется описательно-качественная методология исследования и упоминается Конституция Индонезии 1945 года в качестве основного правового закона и другие законодательные акты, представленные ниже. Ключевые слова: Правовая защита, Конституционные права, Права работников
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The declining costs of Unoccupied Aircraft Systems (UAS, aka drones), their ease of use, and their ability to collect high resolution data from a variety of sensors has resulted in an explosion of applications across the globe. Scientists working in the marine environment are increasingly using UAS to study a variety of topics, from counting wildlife populations in remote locations to estimating the effects of storms and sea level rise on shorelines. UAS also provide transformative potential to study the ways in which humans interact with and affect marine and coastal ecosystems, but doing so presents unique ethical and legal challenges. Human subjects have property rights that must be respected and they have rights to privacy, as well as expectations of privacy and security that may extend beyond actual legal rights. Using two case studies to illustrate these challenges, we outline the legal and regulatory landscapes that scientists confront when people are their primary study subjects, and conclude with an initial set of legal best practices to guide researchers in their efforts to study human interactions with natural resources in the marine environment.
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This article examines the horizontal effect of constitutional norms (or the “state action” problem) in several constitutional systems. It argues that the difficulty of the issue varies depending on two features of such systems, their structures and their ideological commitments. Systems with generalized and centralized constitutional courts will find the issue of horizontal effect easier than systems with specialized constitutional courts, and particularly systems with strongly federal arrangements. Systems with greater commitments to social democratic norms will find the issue easier than systems with weaker social democratic commitments. The article also examines ways of resolving the state action problem, either through substantive constitutional doctrine or through weak forms of judicial review as illustrated by the Grootboom decision of South Africa's Constitutional Court.
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Constitutional rights are conventionally thought to be "personal" rights. The successful constitutional litigant is thought to have a valid claim that some constitutional wrong has or would be been done "to her"; the case of "overbreadth," where a litigant prevails even though her own conduct is permissibly regulated, is thought to be unique to the First Amendment. This "personal" or "as-applied" view of constitutional adjudication has been consistently and pervasively endorsed by the Supreme Court, and is standardly adopted by legal scholars. In this Article, I argue that the conventional view is incorrect. Constitutional rights, I claim, are rights against rules. Constitutional reviewing courts operate at the same level of generality as legislatures. Their task is to evaluate statutes and other rules, in light of constitutional criteria, and to repeal or amend the rules that fail those criteria. The strength of the litigant?s personal claim is irrelevant. I defend this view of constitutional rights with specific reference to the case of conduct-regulating rules, and to the provisions in the Bill of Rights that provide the main (substantive) protection against conduct-regulating rules -- namely, the Free Speech Clause, the Free Exercise Clause, the Equal Protection Clause, and the substantive component of the Due Process Clause. My view has wide implications, for a host of problems in federal courts and constitutional jurisprudence. For example, it suggests that classic justiciability doctrines such as "ripeness" and "standing" have no support in the nature of constitutional rights; their justification, if any, must be found elsewhere. It explains why constitutional doctrines are typically framed in terms of "tests" (e.g., narrow-tailoring tests, or anti-discrimination tests) that look to the predicate and history of rules. In particular, the view defended in my Article bears on the problem of "facial" and "as-applied" challenges -- a problem that, in recent years, has provoked considerable controversy at the Supreme Court. If constitutional rights are indeed rights against rules, then all constitutional challenges are "facial" challenges, and properly so. Relatedly, the "overbreadth" doctrine is misconceived; there is nothing unique to the First Amendment about the propriety of challenges by litigants who lack personal claims of constitutional wrong.
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Constitutional criminal procedure is often seen as starkly libertarian, consisting exclusively or almost exclusively of negative rather than positive rights. But constitutional criminal procedure actually is replete with rights best understood as "quasi-affirmative" - affirmative conditions placed on actions that government cannot realistically be expected to forego. Although the traditional objections to affirmative rights also apply to quasi-affirmative rights, they apply less forcefully. This is particularly true in constitutional criminal procedure, where the pervasiveness of quasi-affirmative rights, the special severity of criminal penalties, and the reliance on evidentiary exclusion as a remedial device all make quasi-affirmative rights less objectionable than they may be elsewhere. Nonetheless, courts often fail to distinguish quasi-affirmative rights from affirmative rights. They appear to shy away from doctrinal paths in constitutional criminal procedure that seem to place any kind of affirmative obligation on government, even when the obligation in question is actually only quasi-affirmative. The result has been the underdevelopment of constitutional criminal procedure overall. This article presents four examples of quasi-affirmative rights in constitutional criminal procedure that courts have failed to develop, in each case largely because the right in question seems affirmative rather than negative. The first example involves the government's obligation to make provision for reasonably expeditious processing of warrant applications before claiming that "exigent circumstances" excused the failure to obtain a warrant in a particular case. The second concerns the government's duty to tape-record custodial interrogations of criminal suspects. The third has to do with the responsibility of police departments to promulgate rules reasonably constraining the discretion of individual officers in deciding whether and how to carry out searches and seizures. The fourth pertains to the obligation of the government to provide court-appointed counsel with some minimally adequate level of financial support. In each of these instances, judicial aversion to the proposed new right appears to have rested in significant part on an exaggerated sense of the jurisprudential difficulties it would raise. Recognizing the distinction between quasi-affirmative and affirmative rights may therefore make courts less reluctant to develop new quasi-affirmative rights in constitutional criminal procedure. It may also help courts to develop those rights in ways that minimize their dangers. The dangers are likely to be most effectively minimized by judicial strategies designed to promote ongoing dialog between the judiciary on the one hand and the political branches on the other. Two classes of such strategies seem particularly promising, and in fact are already in use in criminal procedure. The first consists of announcing rules that are in some sense "reversible" the by the political branches. The second relies on rules that, at least initially, require the government only to pay attention to a problem and to articulate the reasons for its response or lack thereof.
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In recent years, the Supreme Court has substantially expanded the scope of state sovereign immunity. These decisions provide an important occasion for a reconsideration of the entire doctrine of sovereign immunity. This article argues that sovereign immunity is an anachronistic concept, derived from long discredited royal prerogatives, and that it is inconsistent with basic principles of the American legal system. Sovereign immunity is justified neither by history nor, more importantly, by functional considerations. Sovereign immunity is inconsistent with fundamental constitutional requirements such as the supremacy of the Constitution and due process of law. This article concludes that sovereign immunity, for government at all levels, should be eliminated by the Supreme Court.