Law Commons^™

Introduction To Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May

Erin Daly

No abstract provided.

Environmental Dignity Rights Primer, Erin Daly

Erin Daly

No abstract provided.

New Frontiers In Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May, Caiphas Soyapi

Erin Daly

No abstract provided.

Comparative Environmental Constitutionalism, Erin Daly, James May

Erin Daly

As more and more countries around the globe are amending their constitutions to recognises environmental rights and duties relating to air, water, the use of natural resources, sustainability, climate change, and more, courts are increasingly engaging with these provisions and developing a common constitutional law of environmental rights. This article examines this growing jurisprudence and surveys the central axes around which debates about environmental constitutionalism revolve. First, we examine whether environmental rights are more suitably advanced at the international level or at the national level of constitutional law, as is increasingly the case; the former offers two alternatives—protecting the environment …

Robinson Township: A Model For Environmental Constitutionalism, Erin Daly, James May

Erin Daly

In Robinson Township v. Commonwealth of Pennsylvania, a plurality of the court held that a controversial law encouraging fracking (“Act 13”) violates the state’s constitutional Environmental Rights Amendment, the provisions of which the court held are “on par” with political rights. The decision highlights the challenges of engaging constitutional environmental provisions but demonstrates that, with sufficient creativity and commitment, meeting these challenges lies well within the bounds of judicial capability and authority. Because courts around the world are increasingly being asked to engage in environmental constitutionalism, and Robinson Township's thorough examination of the issues is instructive, not only for cases …

Constitutional Environmental Rights, Erin Daly, James R. May

Erin Daly

Global Environmental Constitutionalism, Erin Daly, James May

Erin Daly

No abstract provided.

Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly

Erin Daly

Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. This White Paper posits ten “good practices” – those attributes that make effective outcomes more likely, but not assured – in environmental constitutionalism for advancing positive environmental outcomes considering energy, and governance and sustainability. Good practices in environmental constitutionalism can serve as a useful construct for considering the relationship between sustainability, energy and governance. Accordingly, Section A …

Widener Adds Support For A State-Sponsored Law School, Erin Daly

Erin Daly

No abstract provided.

Transitional Justice In Iraq: Learning The Hard Way, Erin Daly

Erin Daly

The relationship between transitional justice and democracy is fraught and complex, and nowhere more so than in Iraq since the fall of Saddam Hussein. Iraq has experienced a range of transitional justice initiatives, including the trial and execution of its former leader, purges from the civil service and the military, and a series of reconciliation conferences. And yet, democracy has not fully taken root and violence continues to plague many parts of the nation on a regular basis. This article argues that initiatives aimed at changing the structure of society -- including but not limited to constitutionalism, frequent elections, and …

The Future We Want And Constitutionally Enshrined Procedural Rights In Environmental Matters, James May, Erin Daly

Erin Daly

No abstract provided.

The H. Albert Young Distinguished Lecture In Constitutional Law, Constitutional Comparisons: Emerging Dignity Rights At Home And Abroad, Erin Daly

Erin Daly

No abstract provided.

Lawmakers Increasingly Undermining Roe V. Wade, Erin Daly, John G. Culhane

Erin Daly

No abstract provided.

Dignity Rights: Courts, Constitutions, And The Worth Of The Human Person, Erin Daly

Erin Daly

The right to dignity is now recognized in most of the world's constitutions, and hardly a new constitution is adopted without it. Over the last sixty years, courts in Latin America, Europe, Asia, Africa, the Middle East, and North America have developed a robust jurisprudence of dignity on subjects as diverse as health care, imprisonment, privacy, education, culture, the environment, sexuality, and death. As the range and growing number of cases about dignity attest, it is invoked and recognized by courts far more frequently than other constitutional guarantees. Dignity Rights is the first book to explore the constitutional law of …

Budget Numbers Affect People, Who Deserve Dignity, Erin Daly

Erin Daly

No abstract provided.

Health-Care Law Puts Supreme Court Atop A Slippery Slope, Erin Daly

Erin Daly

The Ecuadorian Exemplar: The First Ever Vindications Of Constitutional Rights Of Nature, Erin Daly

Erin Daly

The 'Sala de le Corte Provincial' - a provincial court in Ecuador - became the first court ever to vindicate the recently constitutionalized rights of nature. Recognizing the indisputable importance of the rights of nature for present and future generations, the court held the provincial government liable for flooding damages caused by dumping of construction debris. This judicial victory is arguably overshadowed by challenges facing the plaintiffs in seeing the courts order enforced, however. A subsequent case bears witness to the judiciary’s vindication of rights of nature in Ecuador with ever increasing legal effect.

Constitutional Protection For Environmental Rights: The Benefits Of Environmental Process, Erin Daly

Erin Daly

More and more constitutions around the world -- from Bangladesh to Bolivia, and from the Philippines to the countries of the EU -- are explicitly protecting environmental rights and the values of a clean and healthy environment. In many instances, environmental rights are recognized not as substantive entitlements (which would allow litigants to sue if the government polluted their rivers or clearcut their forests), but as procedural rights. Examples of procedural rights include imposing on governments the obligation to consult with communities before they take actions that will affect their environment or giving individuals the right to participate in governmental …

Constitutional Environmental Rights Worldwide, James May, Erin Daly

Erin Daly

No abstract provided.

New Directions In Earth Rights, Environmental Rights And Human Rights: Six Facets Of Constitutionally Embedded Environmental Rights Worldwide, James May, Erin Daly

Erin Daly

This essay provides an overview of the worldwide phenomenon of constitutional environmental rights. Since the Stockholm Convention, nearly 60 countries have constitutionally entrenched environmental rights, according their citizens basic rights to environmental quality in one form or another. The list is diverse politically, including countries with civil, common law, Islamic, and other traditions. Some of the more recent of these include Kenya in 2010, Ecuador in 2007, France in 2005, Afghanistan in 2004, and South Africa in 1996. As a result, domestic courts and international tribunals are enforcing constitutionally enshrined environmental rights with growing frequency, reflecting basic human rights to …

Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman

Erin Daly

This is a foreword to a compendium of writings by our lost friend and colleague, Bobby Lipkin, collected within a special issue of the Widener Law Review. Bobby’s constitutionalism beholds and celebrates that "no constitutional truths emanate from either politically unaccountable" courts or from paradigmatically imperfect constitutional legal theories. Rather, Bobby’s constitutionalism was participatory and justificatory: it derives from the Constitution’s republican democracy. The Constitution means what We the People allow it to mean at constitutional inflection points in our nation’s history. We miss Bobby dearly.

Dignity In The Service Of Democracy, Erin Daly

Erin Daly

At a broad level, perhaps the most noticeable trend in Latin American constitutional law is the increasing muscularity of constitutional tribunals. Throughout the region, particularly in South America, tribunals charged with interpreting their country’s constitution are increasingly asserting themselves and inserting themselves into public controversies, from abortion to same sex marriage to the rights of political association. This heightened judicial activity can come at a cost to democracy: typically, the more social issues are decided by unelected and unaccountable judges rather than through a political process, the less the people control the resolution of those issues. The more outcomes are …

Human Dignity In The Roberts Court: A Story Of Inchoate Institutions, Autonomous Individuals, And The Reluctant Recognition Of A Right, Erin Daly

Erin Daly

Throughout its history, the Supreme Court has assumed that dignity is relevant to constitutional interpretation, though it has rarely considered exactly how. In the post-war years, the Court (like its counterparts around the world) found that human dignity underlay many individual rights, and in the 1990s, the Court's federalism jurisprudence found that the dignity of states immunized them from most lawsuits in both state and federal courts. This article examines the Court's past references to dignity and argues that the conception of dignity that is evoked in the federalism cases -- which focus, at root, on the autonomy of the …

Senate Debate Served Us All Well, Erin Daly, Paul Regan

Erin Daly

No abstract provided.

Editorial, Finger-Pointing In The Gulf Gets Us Nowhere, Erin Daly

Erin Daly

No abstract provided.

Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James May, Erin Daly

Erin Daly

This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …

Garcetti In Delaware: New Limits On Public Employees' Speech, Erin Daly

Erin Daly

In 2006, the Supreme Court decided Garcetti v Ceballos, 547 U.S. 410 (2006), which significantly altered the free speech rights of the more than 18 million Americans who are public employees for federal, state or local government. It revised the test it had formerly used for public employee speech and, in so doing, dramatically diminished the scope of their rights. This has significant implications not only for the individuals involved, but for the public at large, and for the praxis of democracy in America: by limiting what public employees can say about their workplaces, the Court has reduced the amount …

Truth Skepticism: An Inquiry Into The Value Of Truth In Times Of Transition, Erin Daly

Erin Daly

Truth commissions have become so fashionable in times of transition that one can readily recognize what might be called a ‘truth cascade.’ The commissions, and the reports they produce, are reputed to promote many of the goals at the heart of the transitional justice project: helping victims to heal, promoting accountability, drawing a bright line between the past and the present, promoting reconciliation and so forth. And yet, a closer look at the truth-seeking enterprise suggests that it may not be able to deliver on these promises. This article explores both the intrinsic and instrumental reasons why truth commissions may …

Constitutional Dignity: Lessons From Home And Abroad, Erin Daly

Erin Daly

The American Supreme Court has long recognized the dignity of states, especially in the recent spate of tenth and eleventh amendment cases. Yet, it has never fully embraced the concept of human dignity as part of its individual rights jurisprudence (though individual justices have done so). By contrast, courts around the world have increasingly recognized human dignity as an important, if not predominant, constitutional right. This article argues that both the American Supreme Court state sovereignty cases and the foreign human dignity cases evince an understanding of human dignity that is rooted in the idea of autonomy and self-determination. Defined …

The New Liberty, Erin Daly

Erin Daly

No abstract provided.