The “established by law” criterion recently emerged as an independent element of Article 6 of the European Convention on Human Rights (ECHR), through the European Court of Human Rights’ (ECtHR’s) judgment in Ástráðsson v. Iceland. The criterion imposes the obligation on states to appoint judges in accordance with the respective legal framework. Its emergence occurred at a precarious moment in European intergovernmental politics, with illiberal governments in several European states exhibiting tactics aimed at softening obstacles to their governing powers, upheld by their respective judiciaries. Through a dialog between the European Free Trade Association (EFTA) Court, the Court of Justice of the European Union (CJEU), and the ECtHR, the “established by law” criterion has now emerged in the European constitutional repository for thwarting such tactics. In this article, the story of this development is told through highlights from the case law of the European supranational courts and through the Icelandic backstory of the Ástráðsson case. This story reveals important nuances in how the case law needs to be understood with regards to the constitutional forces at stake. The conceptual approach of the ECtHR in Ástráðsson is also analyzed in context with Lon Fuller’s rule of law principle of congruence, which provides a framework for evaluating the merits of the Court’s tactic.

U.S. debates on reforming the Supreme Court, including controversial arguments to break the norm against court-packing to repair the democratic system, have generally focused on historical precedents and the domestic system, with scant comparative analysis. However, the U.S. debate raises fundamental questions for comparative constitutional lawyers regarding the paradoxes of constitutional repair in contexts of democratic decay, framed here as a distinct category of constitutional transition. This study argues that sharpening our analytical tools for understanding such reforms requires a novel comparative and theoretical approach valorizing the experiences of Global South states and drawing on, and connecting, insights across four overlapping research fields: Democratic decay, democratization, constitution-building, and transitional justice. The article accordingly pursues comparative analysis of the legitimacy of court-packing through case-studies of Turkey and Argentina to offer a five-dimensional analytical framework: (i) democratic context; (ii) articulated reform purpose; (iii) reform options; (iv) reform process; and (v) repetition risk. In doing so, this article seeks not to present a rigid check-list for evaluating the legitimacy of contested reforms, but rather, to foreground important dimensions of reforms aimed at reversing democratic decay as an emergent global challenge for public law meriting closer attention.

This article explores the role which Member State-led infringement proceedings can play in overcoming the EU’s rule of law crisis, and hypothesizes that it can prove helpful in breaking the current impasse. It begins by understanding why the EU’s “traditional” rule of law enforcement mechanisms—such as Article 7 of the Treaty on European Union (TEU) and the recent rule of law conditionality regulation—have failed (Section 2), before exploring how infringement proceedings operate, what their shortcomings are, and why Scheppele’s proposed “systemic infringement proceedings” are important (Section 3). It then seeks to apply said findings to the rule of law crisis, using two recent developments as an example: The oral proceedings of Commission v. Poland (Régime disciplinaire des juges) and a recent vote by the Dutch Parliament compelling its government to take Poland before the Court of Justice of the European Union (CJEU) (Section 4). Finally, it explores the broader constitutional implications of relying on Article 259 Treaty on the Functioning of the European Union (TFEU) to overcome the rule of law crisis: It discusses Kochenov’s notion of “biting intergovernmentalism”, what Article 259 illustrates about the European Union’s (EU) hybrid constitution, and how intergovernmental legal instruments can facilitate further European integration (Section 5). It concludes by restating and summing up article’s hypothesis.

This article explores the role of constitutional judges in advancing constitutional literacy, understood as knowledge relating to the functioning of the constitutional order. Part of the inquiry is descriptive and geared towards identifying the modalities that courts today use to cultivate such literacy among the public, or segments thereof. The article also poses normative questions about literacy-boosting efforts. How do these relate to “typical” judicial functions? Are courts well-placed and equipped to disseminate constitutional knowledge? Based on an analysis of judicial practices, it is suggested that lay individuals are increasingly treated as a key constituency by courts, warranting the development of specially curated initiatives crafted with the values of inclusion, accessibility, and transparency in mind. This manifests notably in a turn to social media use and an incipient embrace of legal design thinking. The available literacy-boosting modalities are not without flaws, however, and we should be cognizant of limits regarding what can realistically be expected of courts in furthering popular constitutional knowledge. Notwithstanding room for improvement in the design and delivery of constitutional literacy, the existing judicial efforts when viewed in their entirety should be evaluated positively as making a meaningful contribution in meeting people’s interests in greater constitutional knowledge.

This article argues that given the globalization of legal education and legal services, professional legal ethics should incorporate not only a cosmopolitan dimension but also sentiments such as compassion, respect, and sensitivity for human suffering. Inspired by the philosophy of Immanuel Kant and his theory of education, this article seeks to address some of the limitations of the professional codes of conduct for barristers and solicitors, in England and Wales, by applying a moral cosmopolitan approach to the teaching of professional legal ethics. This normative approach is underscored by a commitment to moral duties to persons irrespective of their nationality, gender, religion, or any other defining characteristic. These duties include promoting client autonomy and engaging in law reform. This article also argues that Clinical Legal Education programs are an appropriate methodology for teaching moral cosmopolitan ethics.