Comparative emergency powers
ncogan at law.whittier.edu
Tue Jul 6 12:48:05 PDT 2010
Ilya, shalom. For comparative purposes, you might also look at Aharon Barak, Judgments of the Israel Supreme Court, Fighting Terrorism Within the Law. All the best. N
Neil H. Cogan
Professor of Law
Whittier Law School
3333 Harbor Boulevard
Costa Mesa, CA 92626
Visiting Professor of Law
Bar Ilan University
Faculty of Law
Ramat Gan, Israel
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Miguel Schor [mschor at suffolk.edu]
Sent: Monday, July 05, 2010 2:56 PM
To: Ilya Somin
Subject: Re: Comparative emergency powers
Well, I'd start with Sandy and Jack Balkin's new article, Constitutional Dictatorship: Its Dangers and Its Design. There is, as you might imagine, a rich literature on the use and abuse of emergency powers in Latin America. A deeply historical work by a political scientist is Brian Loveman's The Constitution of Tyranny. The middle chapters are all case studies but the first 2 or so chapters and the last one lay out the theory and conclusions. I think it would be a mistake to talk about emergency powers, moreover, and not cover the tumultuous 19th century and how it marred the development of institutions in the region. If the US had had a longer and bloodier revolution and it had been followed immediately by the civil war, we may well have ended up with institutions that look more like those in Latin America. It took well over half a century for stable states to begin to emerge in the region (with some exceptions such as Chile and Brazil) and by then the pattern of excessive emergency powers had been set. I explored how instability influenced the course of constitutional development in Constitutionalism Through the Looking Glass of Latin America, 41 Tex. Int’l L. J. 1 (2006). Also useful is Negretto, Gabriel L. and José Antonio Aguilar Rivera. 2000. “Liberalism and Emergency Powers in Latin America: Reflections on Carl Schmitt and the Theory of Constitutional Dictatorship.” Cardozo Law Review 21:1797-1823.
Although the theoretical difference between dictatorship and democracy is clear, the empirical reality is considerably more muddled than theory would have it. Some dictatorships have numerous pathways by which different actors have input into policymaking (Mexico under the PRI provides a great example of a fairly “open” dictatorship) whereas democracies mimic the key features of dictatorships during emergencies. A really neat and short piece that explores what happens to presidentialism when the exception becomes the norm is Guillermo O’Donnell, Delegative Democracy, 5 J. Democracy. 56 (1994). There is a considerable and rich comparative literature on the various brutal military regimes that populated the southern cone in the 60s and 70s. Anthony Pereira's work in this area, Political Injustice: Authoritarianism and the Rule of Law in Brazil, Chile, and Argentina, is excellent. You will find a series of neat articles dealing with how authoritarian regimes utilized courts in Tamir Moustafa and Tom Ginsburg eds. Rule By Law (2008). It is no accident that a number of chapters in the book deal with Latin America as the nations of the region have long mixed authoritarianism and legality. Probably no democracy in the region mixed democracy with emergency powers more than Colombia. This has changed following the advent of the 1993 Constitution and the new Colombian Constitutional Court. You might find Rodrigo Uprimny, The Constitutional Court and Control of Presidential Extraordinary Powers in Colombia, 10 DEMOCRATIZATION 46, 52 (2003) useful. If you want a comparative study of Europe and Latin America, Nancy Bermeo, Ordinary People in Extraordinary Times: The Citizenry and the Breakdown of Democracy (2003) is very fine. Kim Scheppele has been doing a lot of really great comparative work on emergency powers. Her article comparing Canada and the US would be very useful since emergency powers are not just a problem in Latin America, North American emergencies: The use of emergency powers in Canada and the United States, Int J Constitutional Law 2006 4: 213-243.
Professor of Law, Suffolk University Law School
Visiting Director of the Constitutional Law Center, Drake University 2010-11
SSRN Webpage http://ssrn.com/author=469730
On Jul 5, 2010, at 4:23 PM, Ilya Somin wrote:
Dear Conlawprof list members:
Next month, i will be teaching a class on constitutional political economy at the University of Torcuato Di Tella in Argentina.
I am looking for 1-2 good comparative readings on the use of constitutional emergency powers, particularly in European and Latin American polities. I hope to find readings that are 20-30 pp. each and reasonably accessible to a class made up of students for whom English is not their primary language. Ideally, it would be good to have one article defending the need for such powers, and another highlighting their abuses. It would also be helpful if at least one article discussed Latin American examples (though it would not have to focus on them explicitly) since nearly all of the students will be Argentinians or other Latin Americans.
I know we have a number of comparative con law experts on this list. So I would very much appreciate any suggestions you might have. Off-list replies are fine, though it's possible there are others on the list who might also be interested in the suggestions.
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
e-mail: isomin at gmu.edu<mailto:isomin at gmu.edu>
SSRN Page: http://ssrn.com/author=333339
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