Books by Kim Lane Scheppele
Papers by Kim Lane Scheppele
BUL Rev., 2012
Copyright (c) 2012 The Trustees of Boston University Boston University Law Review. January, 2012.... more Copyright (c) 2012 The Trustees of Boston University Boston University Law Review. January, 2012. 92 BUL Rev. 89. LENGTH: 44104 words THE NEW JUDICIAL DEFERENCE. NAME: Kim Lane Scheppele*. BIO: * Laurance ...
On Wednesday 6 January, President Trump instructed his supporters to march down to the Capitol an... more On Wednesday 6 January, President Trump instructed his supporters to march down to the Capitol and defend the members of Congress who planned to nullify the November 2020 election results. While Trump didn't explicitly order his followers to break into the Capitol and attack those who were ready to certify his opponent as the victor, he whipped the crowd into a frenzy by asserting that they would "never take back our country with weakness. You have to show strength and you have to be strong." After a months-long campaign to convince his supporters that he had been wronged and he needed "patriots" to prevent him from being forced out of office, they knew what he wanted them to do. One week later, on Wednesday 13 January, Trump was impeached by the House of Representatives for having incited insurrection.-1-CORE Metadata, citation and similar papers at core.ac.uk
Last week, Poland stuck its thumb in the eye of the European Commission, again. Responding to the... more Last week, Poland stuck its thumb in the eye of the European Commission, again. Responding to the complementary Rule of Law Recommendation that the Commission had issued two months earlier, the Polish government asserted that everything the Commission had complained about had been fixed. Since the government had compromised the independence of the Constitutional Court by both packing the Court with a working majority of loyalists and installing a more politically reliable Court president, the Polish government explained that there is nothing left to fight about. The Commission addressed Poland with law, and Poland responded with opposing facts on the ground.
The Hungarian parliament recently passed a new national security law that enables the inner circl... more The Hungarian parliament recently passed a new national security law that enables the inner circle of the government to spy on people who hold important public offices. Under this law, many government officials must "consent" to being observed in the most intrusive way (phones tapped, homes bugged, email read) for up to two full months each year, except that they won't know which 60 days they are under surveillance. Perhaps they will imagine they are under surveillance all of the time. Perhaps that is the point. More than 20 years after Hungary left the world captured in George Orwell's novel 1984, the surveillance state is back. Now, if the Fidesz government of Prime Minister Viktor Orbán finds something it doesn't like-and there's no legal limit to what it may find objectionable-those under surveillance can be fired. The people at the very top of the government are largely exempt from surveillance-but this law hits their deputies, staffers and the whole of the security services, some judges, prosecutors, diplomats, and military officers, as well as a number of "independent" offices that Orbán's administration is not supposed to control.
On 8 April, Hungary lost again at the Court of Justice of the European Union (ECJ). The European ... more On 8 April, Hungary lost again at the Court of Justice of the European Union (ECJ). The European Commission had alleged that that Hungary violated the independence of its data protection officer and the ECJ agreed. The case broke little new legal ground. But it is important nonetheless because it signals serious trouble within the EU. The case exposes Hungary's ongoing challenge to the EU's fundamental principles. And it exposes the limitations of ordinary infringement proceedings for bringing a Member State back into line. The Commission may have won this particular battle, but it is losing the war to keep Hungary from becoming a state in which all formerly independent institutions are under the control of Fidesz, the governing party. The Commission clearly sees the danger of one-party domination and it has attempted to challenge the Hungarian government before. But the Commission has so far not picked its battles wisely or framed its challenges well. It could do better. The case of the data protection officer is a case in point. The case involved András Jóri, Hungary's former data privacy ombudsman, who was midway through a six-year term in 2011 when his office was closed down and a new data protection authority constituted with a different person in charge. The new data protection officer was appointed by the Fidesz-affiliated President of the Republic upon the nomination of Prime Minister Viktor Orbán, the leader of Fidesz. In the course of this constitutional reorganization, Jóri, who had been appointed by a previous parliament, was fired before he could finish his term. The Commission took Hungary to the ECJ because every Member State is required to have a data protection official whose job it is to ensure that Data Protection Directive 95/46 is enforced within the Member State. This official, according to the Directive, must be able to act with "complete independence" (Art. 28(1)). The Commission alleged that firing the data protection ombudsman before the end of his legally established term, outside the conditions established in domestic law for removing him, constituted a violation of the independence of the office, and a Grand Chamber of the Court agreed: 54. If it were permissible for every Member State to compel a supervisory authority to vacate office before serving its full term, in contravention of the rules and safeguards established in that regard by the legislation applicable, the threat of premature termination to which that authority would be exposed throughout its term of office could lead it to enter into a form of prior compliance with the political authority, which is incompatible with the requirement of independence.
On Wednesday, the European Commission reacted to the continuing deterioration of the rule of law ... more On Wednesday, the European Commission reacted to the continuing deterioration of the rule of law situation in Poland. The remaining question, of course, is why this argument has been used in the context of 7(1) as opposed of 7(2) given that the situation on the ground in Poland is clearly – in the view of the Commission, the Venice Commission and countless other actors – one of clear and persistent breach of values, as opposed to a threat thereof. The explanation might lie beyond the simple difficulty of the procedural requirements related to the sanctioning stage.
It's official. President Donald Trump will be a one-term president and his term will end on 20 Ja... more It's official. President Donald Trump will be a one-term president and his term will end on 20 January 2020. Trump has been defeated by former Vice-President Joe Biden, who has won more votes than any other presidential candidate in US history. Biden reconsolidated traditional Democratic territory and made strong inroads into conventionally Republican strongholds in the Southeast and Southwest of the country. The election map looks convincingly blue, the color of the Democratic Party. People are dancing in the streets in many American cities. Despite the length of time it took to determine the result, this is not a close election. Everyone who has felt that the last four years brought American democracy perilously close to collapse should now feel relieved. Biden's margin of victory in the decisive states is too large to be overturned by typical recounts or by the usual toolbox of legal challenges. As I will explain in this post, however, we're not completely out of danger yet.
Hastings Law Journal, 1998
Part of the Law Commons This Article is brought to you for free and open access by the Law Journa... more Part of the Law Commons This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository.
Yale journal of law and the humanities, 2012
In Representing Justice,' Judith Resnik and Dennis Curtis call our attention to something hid... more In Representing Justice,' Judith Resnik and Dennis Curtis call our attention to something hiding in plain sight: the iconography of justice. Their book, now out in the light of day after many years in the making, is a tour deforce. It is monumental-literally about monuments to justice. It is also monumental in its scope and ambition, as well as in its sheer size, weight, number of images, and pages of footnotes. This is not a book for the faint of heart, those with lazy minds or, for that matter, those with weak backs. Resnik and Curtis teach us to see how aspirations for justice are represented literally in the built environment of law. Resnik and Curtis give us permission to linger in the halls of justice, to pay attention to the statues and canvases that grace public buildings devoted to law, to notice the way in which law is a field of aesthetics in addition to being a field of pain and death (as Robert Cover famously reminded us). 2 The art and architecture of law are not m...
In his novel Slaughterhouse-Five, Kurt Vonnegut Jr. used the memorable phrase 'so it goes' every ... more In his novel Slaughterhouse-Five, Kurt Vonnegut Jr. used the memorable phrase 'so it goes' every time someone died. According to Vonnegut, the 'Trafalmadorians' started the practice, because they experience past, present and future in random order and so, to them, death is just someone having a bad day. Defining the Hungarian constitutional regime turns legal analysts into Trafalmadorians. We find that Hungarian democracy dies over and over again while appearing alive in between deaths, sometimes achieving both states almost simultaneously. We say "so it goes" one day only to have to say "so it goes" again the next.
Today Europe acted to hold the Hungarian government to the constitutional values that it eagerly ... more Today Europe acted to hold the Hungarian government to the constitutional values that it eagerly endorsed when it joined the European Union nearly a decade ago.
Participants in all of these sessions were very helpful in the later reformulations of this argum... more Participants in all of these sessions were very helpful in the later reformulations of this argument. I would like to thank the students in my courses on Terrorism and Democracy (spring and fall 2002 and spring 2004) for being willing to follow through the twists and turns of this story with me as it was evolving. I would also like to thank helpful audiences at the American Association of Law Schools panel on military tribunals in Washington D.C. in January 2003, and at the Penn Law European Society meeting in Strasbourg, France in June 2003 for their good questions and useful challenges to the general framework presented here. Seth Kreimer has discussed many of these issues with me, and I have always benefited from his wise counsel. Serguei Oushakine, as always, both reminds me of why anyone should care about these things and prevents me from thinking about these things only in legal terms. Since things change quickly in this field, I should mention that this article was finally put to bed in mid-May 2004. What happened after that time is not reflected here.
Proceedings of the Annual Meeting (American Society of International Law), 2011
The Migration of Constitutional Ideas
Actes de la recherche en sciences sociales, 2008
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Books by Kim Lane Scheppele
Papers by Kim Lane Scheppele