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Sources of Law and of Rights YALE LAW SCHOOL GLOBAL CONSTITUTIONALISM 2014 A Part of the Gruber Program for Global Justice and Women’s Rights Sources of Law and of Rights Surveillance and National Security Religion as a Source of Law Judicial Enforcement of International Human Rights Equality in Democracy: Legislatures, Courts, and Quotas Constitutional Constraints on the Power to Punish Editor Judith Resnik Gruber Program for Global Justice and Women’s Rights The Gruber Program for Global Justice and Women’s Rights has supported the Yale Global Constitutionalism Seminar since The Gruber Foundation was established at Yale University in 2011. The Seminar originated at Yale Law School in 1996 and is now an integral part of the Gruber Program. The Gruber Program supports programs in international justice and human rights. Core components include the Global Constitutionalism Seminar, the Gruber Distinguished Lectures in Global Justice and Women’s Rights, and the Gruber Fellowships in Global Justice and Women’s Rights. The commitment of philanthropists Peter and Patricia Gruber to bringing about a fundamentally just world is furthered by the Gruber Program for Global Justice and Women’s Rights at Yale Law School, which draws upon the missions of the former Gruber Justice and Women’s Rights Prizes. www.gruber.yale.edu Sources of Law and of Rights: Yale Global Constitutionalism 2014 Editor Judith Resnik Executive and Managing Editor Travis Pantin Senior Managing Editor Andrea Scoseria Katz Senior Editor Julie Veroff Editors Joshua Braver Sarafina Midzik Rebecca Forrestal Bilyana Petkova Emily Gerrick Mara Revkin David Louk Zayn Siddique Sources of Law and of Rights: Yale Global Constitutionalism 2014 SESSIONS Surveillance and National Security Kim Lane Scheppele, Amy Kapczynski, and Allan Rosas Religion as a Source of Law Robert Post and Rosalie Abella Judicial Enforcement of International Human Rights Alec Stone Sweet and Helen Keller Equality in Democracy: Legislatures, Courts, and Quotas Judith Resnik, Reva Siegel, and Susanne Baer Constitutional Constraints on the Power To Punish Kate Stith, Dennis Curtis, Nancy Gertner, and Sabino Cassese All rights reserved, Yale Law School 2014. Sources of Law and of Rights: Yale Global Constitutionalism 2014 Sources of Law and of Rights Table of Contents Preface ................................................................................................................... i I. SURVEILLANCE AND NATIONAL SECURITY DISCUSSION LEADERS: KIM LANE SCHEPPELE, AMY KAPCZYNSKI, AND ALLAN ROSAS Constraining the Collection of Personal Data: Theories of Privacy Manuel José Cepeda-Espinosa, Privacy (2012) .................................. I-6 Microcensus Case (Federal Constitutional Court of Germany, 1969) ............................................................................... I-8 Rotaru v. Romania (European Court of Human Rights, 2000) ......... I-10 Florida v. Jardines (Supreme Court of the United States, 2013) ...... I-16 Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD) (European Court of Justice, 2014) .. I-20 Technologies of Surveillance and Regimes of Rights in an Era of Big Data Clapper v. Amnesty International USA (Supreme Court of the United States, 2013) ....................................................................... I-23 Kim Lane Scheppele, The Global Panopticon: The Reversal of Transparency in the Anti-Terror Campaign (Part I, 2014) ........... I-29 Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court (Part I, 2014) ....... I-34 American Civil Liberties Union v. Clapper (United States District Court for the Southern District of New York, 2013) ..................... I-35 Klayman v. Obama (United States District Court for the District of Columbia, 2013) ........................................................... I-39 Report on the Telephone Records Program (Part II, 2014) .............. I-43 Bruce Ackerman, The White House Begs the Question on Mass Surveillance (December 26, 2013) ................................................ I-48 Allan Rosas, Overview of European Law on Data Protection and National Security (2014) ................................................................ I-50 European Union Directive on Data Retention (2006) ....................... I-53 Table of Contents Digital Rights Ireland and Seitlinger and Others (Court of Justice of the European Union, 2014) ............................................ I-55 The Inter-Jurisdictional Issues: Transnational Privacy Protection Allan Rosas, Interjurisdictional Data Privacy Regimes (2014) ....... I-63 Kim Lane Scheppele, The Global Panopticon (Part II, 2014) .......... I-64 Resolution on the US NSA Surveillance Programme (European Parliament, 2014) ........................................................................... I-66 Resolution 68/167: The Right to Privacy in the Digital Age (United Nations, 2013) .................................................................. I-70 II. RELIGION AS A SOURCE OF LAW DISCUSSION LEADERS: ROBERT POST AND ROSALIE ABELLA The Stakes of Using Religious Doctrine as a Source of Law The Origins and the Ideals of the Secular State Jürgen Habermas, Notes on Post-Secular Society (2008) .................. II-5 Dieter Grimm, Conflicts Between General Laws and Religious Norms (2014) ........................................................... II-8 Adjudication in Non-Secular States Shefer v. State of Israel (Supreme Court of Israel, 1993) ................ II-10 Yuval Sinai, Jewish Law in Israel: Law, Religion, and State (2013) ................................................................................. II-13 Solodkin v. Beit Shemesh Municipality (Supreme Court of Israel, 2004) .............................................................................. II-15 Martin Lau, Sharia and National Law in Pakistan (2011) .............. II-18 Tayyab Mahmud, Freedom of Religion and Religious Minorities in Pakistan (1995) ....................................................... II-20 Zaheeruddin v. State (Supreme Court of Pakistan, 1993) ............... II-22 Secular Interpretations of Religious Law: India and the Shah Bano Case Pratibha Jain, Balancing Minority Rights and Gender Justice: The Impact of Multiculturalism on Women’s Rights in India (2005) .................................................................................. II-24 Mohammed Ahmed Khan v. Shah Bano Begum (Supreme Court of India, 1985) .................................................................... II-26 Sources of Law and of Rights: Yale Global Constitutionalism 2014 Martha C. Nussbaum, India: Implementing Sex Equality Through Law (2001) .................................................................... II-29 Siobhán Mullally, Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case (2004) ............................... II-30 Differentiating Between Religious and Secular Sources of Law Jones v. Wolf (Supreme Court of the United States, 1979) ............. II-32 Religious Marriage Contracts in Secular Courts Bruker v. Marcovitz (Supreme Court of Canada, 2007) .................. II-37 Minkin v. Minkin (New Jersey Superior Court, 1981) .................... II-43 Aflalo v. Aflalo (New Jersey Superior Court, 1996) ....................... II-46 Religious and Secular Sources of Law and Accommodating Religion Constitution of India (1950) ............................................................ II-50 Accommodation in the United States United States v. Lee (Supreme Court of the United States, 1982) ................................................................................ II-51 Employment Division v. Smith (Supreme Court of the United States, 1990) ................................................................................. II-53 Cheryl Rubenstein, Legislating Religious Liberty Locally: The Possibility of Compelling Conflicts (2000) ................................... II-57 Douglas NeJaime & Reva B. Siegel, Conscience Wars (2014) ....... II-58 Bob Christie, Religious Freedom Bill Riles Gay Rights Supporters (2014) ............................................................. II-61 Center for Arizona Policy, Religious Freedom Restoration Act: SB 1062 Fact Sheet (2014) .................................................... II-62 Arizona Senate Bill 1062, Amending Sections . Relating to the Free Exercise of Religion (2014) ............................................ II-63 Accommodation and Proportionality Christian Education South Africa v. Minister of Education (Constitutional Court of South Africa, 2000) .............................. II-64 R. v. N.S. (Supreme Court of Canada, 2012) .................................. II-72 Table of Contents III. JUDICIAL ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS DISCUSSION LEADERS: ALEC STONE SWEET AND HELEN KELLER European Convention on Human Rights ECtHR Seminar Background Paper, Implementation of the Judgments of the European Court of Human Rights: A Shared Judicial Responsibility? (2014) ................................... III-7 Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe (2012) ................ III-13 X. v. the Migration Authority of Thurgovia (Federal Supreme Court of Switzerland, 2012) .......................... III-18 Haşim Kılıç, President of the Turkish Constitutional Court, On the Occasion of the 52nd Anniversary of the Court (April 25, 2014) ........................................................................
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