Global Constitutionalism 2019: Fragile Futures and Resiliency

November 3, 2019

Global Constitutionalism 2019: Fragile Futures and Resiliency is now available as an e-book to download without charge. This volume is the eighth in the series of readings for Yale’s Global Constitutionalism Seminar, a part of the Gruber Program for Global Justice and Women’s Rights. This year’s materials are co-edited by Judith Resnik and Clare Ryan.

Chapter I, Litigating Climate Change, examines efforts to respond to climate change through litigation under domestic and international sources of law. The materials address the familiar question of the judicial role in the context of daunting challenges to the world. An initial set of issues revolves around governments’ and private parties’ responsibilities not to contribute to and to stem the tide of change. Many defendants respond by arguing that the individuals, groups, or entities seeking to hold them accountable have no authority to proceed, or that courts ought to defer to other branches of government and reject lawsuits. When such objections are overcome, issues of liability and remedies come to the fore, again framed around questions about the authority of judges to call on others for answers or to specify standards. These questions arise in cases where litigants allege that governments have not complied either with domestic or with international commitments to tackle climate change. After surveying many courts’ efforts to address these challenges, the Chapter ends with a discussion of whether the gravity of the environmental crisis inherently compels judicial engagement.

Chapter II, Judging Under Stress, reflects on the many jurisdictions in which judges are finding their own legitimacy called into question. The materials address the metrics of judicial legitimacy, sources of backlash, and responses from courts in light of twenty-first century challenges to judicial authority and to constitutional democracy. Contemporary judicial foes—or friends—come not only from other branches of government, but also from the media and from repeat player litigants who can seek to select judges and shape court precedents and procedures. These pressures have resulted in efforts to reconfigure courts, force the retirement of some judges, select others, and change judges’ decision-making authority. The materials emphasize that judicial independence is fundamental to constitutionalism and the rule of law, while recognizing that commitments to judicial independence also depend on the political economy and theories undergirding these commitments. In response to increasingly fractured and polarized times, some judges are restrained—tethering their work to precedents—and others emboldened. Whether or not existing structures or judicial practices are enough to protect judicial independence today remain open questions. Answers to these questions come in part through the essays and decisions of constitutional court judges, excerpted in the second half of this Chapter. These works call for recommitments to the integrity of judiciaries, structures of fair governance, and the rights of individuals, from both their colleagues and the body politic.

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