12 May 2022
The Dilemma of Mild Emergencies that are Accepted as Consistent with Human Rights
Amid the pandemic and the war in the Ukraine, Canada had a quiet emergency. On 14 February 2022, the federal government used the Emergencies Act to respond to a three week occupation of the Parliament building and various border blockades. This was a mild and quick emergency, as far as emergencies go. Mild emergencies that arguably respect rights are better than severe emergencies that do not, yet there is cause for concern. Continue reading >>
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11 May 2022
Law’s Fate under the US “War on Terror”
More than 20 years after the US declared “war on terror” we must assess the damage it inflicted on the core values embodied in the rule of law and the success of efforts to defend them. The fate of the rule of law — whose raison d’être is to restrain the state from abusing its power — itself depends on politics. Party control of the executive and legislature (which in turn shapes the appointment of judges) was the single most powerful determinant of responses to the numerous abuses under all four administrations since 9/11. Continue reading >>
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10 May 2022
“When in doubt, detain!”
Israel recently saw a bout of terror attacks, including three assaults in a single week in late March 2022, and more since. The Israeli Government, in an attempt to curb the violence, decided among other steps to administratively detain without trial not only suspected possible terrorists from the Occupied Territories (as it regularly does) but also possible suspects among Israeli citizens. The use of administrative detentions without trial is a good example of the permanent mindset of emergency, as they are utilized as a regular means of government: when in doubt, the Israeli government detains. Continue reading >>
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09 May 2022
On 9/11 and three natures of a permanent state of emergency
One particular consequence of the post-9/11-counterterrorism paradigm is there has been a rapid and global expansion of emergency powers, as terrorist threats are viewed as creating a ‘permanent’ emergency. This is not to say that the post-9/11 war on terror was new as far as the issues of states of emergency are concerned, but rather, as aptly put by Dyzenhaus, "all that is new is the prevalence of the claim that this emergency has no foreseeable end and so is permanent.” Continue reading >>
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05 May 2022
Constitutional Power Struggle in Brazil
On 20th April 2022, the Brazilian Supreme Court (STF) convicted Federal Deputy Daniel Lucio da Silveira to eight years and nine months imprisonment, based on his verbal attacks against the democratic rule of law, Supreme Court judges and other state institutions. The next day, President Bolsonaro issued a controversial decree granting pardon to the Deputy and ordering the immediate extinction of all the punishments imposed by the Supreme Court. Even though the constitutionality of the decree can be debated, the main discussion is a political, not a legal one. Continue reading >>
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29 April 2022
Bulgaria’s Failed Specialized Criminal Justice Experiment
On 14 April 2022 Bulgaria’s Parliament adopted legislative amendments, which finally put an end to the Specialized Criminal Court and its mirroring Specialized Prosecutor’s Office. Both institutions were set up during Boyko Borissov’s first term as Prime Minister in 2011 and severely undermined the rule of law in Bulgaria. The creation and development of these structures was encouraged and marked as progress by the European Commission, which calls into question the Commission’s ability to objectively monitor the rule of law in its Member States, to recognize threats, and to give adequate recommendations. Continue reading >>26 April 2022
Keeping the Past and the Present Apart
The mere fact that a judge was appointed for the first time under undemocratic conditions does not automatically determine that the court in which that judge adjudicates lacks the necessary independence under EU law. The CJEU has answered to this effect a question of Mr. Kamil Zaradkiewicz, appointed to Poland's Supreme Court in 2018 on recommendation of the new government-controlled National Council of Judiciary and thus lacking independence himself. Importantly, the CJEU emphasized that the referring court did not submit any evidence that may rise legitimate and serious doubts, in the minds of individuals, over independence and impartiality of the particular judge. With this decision, the Court refused to be drawn into the inner-Polish dispute about decommunization, and reinforced its jurisprudence on judicial independence standards in the EU. Continue reading >>
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03 April 2022
Rule of Law, AI, and “the Individual”
The institutional safeguards formulated under the Rule of Law tend to focus on “an individual” or “the individual” who can be the bearer of the rights and protections it awards. This pre-digital formulation worked well in an era where law was the pre-eminent form of social regulation. However, increasingly, individual interests are impacted not only on the basis of the actions and choices of the concerned individual, but also on the basis of data collected about her social context and that of other similarly situated individuals. In order to reconcile these tensions, in this blog, I argue for supplementing the existing individual protections recognized under the Rule of Law framework with recognition of collective interests in order to strengthen the Rule of Law in the age of AI. Continue reading >>
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02 April 2022
The Paradox of Efficiency: Frictions Between Law and Algorithms
On the 13th of January 2022, a Spanish Administrative court ruled in favour of algorithmic opacity. Fundación Civio, an independent foundation that monitors and accounts public authorities, reported that an algorithm used by the government was committing errors. BOSCO, the name of the application which contained the algorithm, was implemented by the Spanish public administration to more efficiently identify citizens eligible for grants to pay electricity bills. Meanwhile, Civio designed a web app to inform citizens whether they would be entitled for this grant. Continue reading >>01 April 2022
High Tech, Low Fidelity? Statistical Legal Tech and the Rule of Law
The advent of statistical ‘legal tech’ raises questions about the future of law and legal practice. While it has always been the case that technologies have mediated the concept, practice, and texture of law, a qualitative and quantitative shift is taking place. Statistical legal tech is being integrated into mainstream legal practice, particularly that of litigators. These applications mediate how practicing lawyers interact with the legal system. By shaping how law is ‘done’, the applications ultimately come to shape what law is. Continue reading >>
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