On Friday, November 5th, and Saturday, November 6th, 2010, the Law School hosted an international law seminar titled “Constitutional Litigation: Procedural Protections of Constitutionalism in the Americas … and Beyond.” The seminar was held in conjunction with the Inter-American Bar Association and the Inter-American Academy of International and Comparative Law. Professor Robert S. Barker acted as chairman for the seminar and George R. Harper, Esquire, the Immediate Past President of the Inter-American Bar Association presented the keynote speech.
This year’s group of presenters featured representative from the United States, Canada, Latin America, and Europe. The presenters included the Honorable D. Brooks Smith of the United States Court of Appeals for the Third Circuit, John D. Richard, (ret.) Chief Justice of the Federal Court of Appeal of Canada, Licenciado Olman A. Rodriguez, Law Clerk to the Constitutional Supreme Chamber of the Supreme Court of Costa Rica, and José Gamas Torruco, Professor of Constitutional Law and Economic Law at the National Autonomous University of Mexico and former Ambassador and Secretary of the Cabinet of the Presidency of Mexico. The “…and Beyond” portion this year highlighted Germany and Spain with presentations from Dr. Michael Lysander Fremuth, a Senior Research Fellow and Lecturer at the Chair for Public International and European Law of Cologne University, and Marian Ahumada Ruiz, Chief Legal Counsel to the Government of Spain and Professor of Constitutional Law at the Autonomous University of Madrid.
In addition, several Duquesne faculty members, including Dean Ken Gormley of the Law School, Dean Christopher M. Duncan of the McAnulty College of Liberal Arts, law professor Susan C. Hascall, and adjunct law professor Antonio Lordi, served as commentators and panelists.
Alejandro M. Garro, professor of law at Columbia University School of Law and graduate of the National University of La Plata School of Law in Argentina, said that the question and answer sessions, as well as the panel discussions, made “this seminar not only a magnificent learning experience, but also a source of reflection and inspiration for all of those interested in applying constitutional values in their daily task of learning, teaching, applying, and advocating constitutional rules.”
Although each of the nations represented at this symposium has a constitution in place, the development, interpretation, application, enforcement, and litigation of each constitution varies considerably.
Although many countries have used the United States Constitution as a base for developing and drafting their own constitutions, each country has created its own system of procedures and review. A significant difference between the United States and many other countries is the existence of some form of Constitutional Court in the latter. In the United States, it is the responsibility of the federal courts, and ultimately the Supreme Court of the United States, to interpret the Constitution and make declarations of unconstitutionality if necessary. In other countries, including Costa Rica, Spain, and Germany, the ultimate interpretation of the constitution is entrusted to the Constitutional Court or Chamber.
Additionally, Professor Garro, who presented a fascinating overview of the processes and procedures of constitutional adjudication in Argentina, illustrated the distinction between centralized and decentralized judicial review. Garro stated, “The seminar provided a unique opportunity, unmatched by any other academic institution in the Americas, to contrast, compare, and discuss different perspectives on how to enforce constitutional rules in the Americas. This year, the focus was on the different procedural mechanisms to enforce the Constitution, contrasting the European centralized-judicial review model with the US-inspired decentralized (diffuse) model of judicial review.” Notably, Argentina follows a decentralized approach similar to that of the United States.
Another distinction that is revealed when the constitutional practices of Latin American countries are compared to those of the United States and elsewhere is the development of the amparo, habeas corpusand other similar procedures as methods to protect human rights and freedoms. In many countries, access to these procedures, as well as judicial review by the constitutional courts, is available to everyone at no cost. This is a stark contrast to the general equitable remedies that are available in the United States.
Aníbal Pérez-Liñán, associate professor of political science at the University of Pittsburgh and principal investigator in a comparative study of Supreme Courts in Latin America between 1900 and 2010, further elaborated on these differences by stating, “The symposium featured a very impressive group of legal scholars, who proved that Latin America has a very rich tradition of constitutional litigation. Some Latin American institutions were borrowed from the U.S. model of judicial review; some were borrowed from the Continental European model of centralized judicial review, and some others--such as the amparo procedure and the specialized constitutional chambers within Supreme Courts--originated in the region. The participants explained how these different traditions have converged into very interesting systems of constitutional adjudication.
Each system of constitutional adjudication is unique and interesting to compare to other systems. In relation, an extremely fascinating constitutional experience exists in Puerto Rico. Ángel R. Oquendo, the George J. and Helen M. England Professor of Law at the University of Connecticut and former law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals in the 9th Circuit, presented a revealing glimpse into the current status of Puerto Rico and how the U.S. Constitution affects the Puerto Rican people. Puerto Rico adopted its own constitution in 1952, which was based on the U.S. Constitution, and required the approval of the United States Congress. Professor Oquendo said, “This year, I enthusiastically participated in my first Duquesne Law School Inter-American Law Seminar and found the discussion on “Constitutional Litigation in the Americas” deeply enlightening and most fascinating.”
The comments and questions offered by presenters, panelists, and other participants clearly indicated not only the impact and importance of this seminar, but also the significance of past seminars as well. According to Professor Oquendo, “the event, which has the feel of a family reunion, is a wonderful tribute to the host institution and to the work and career of Professor Robert S. Barker.” Certainly everyone involved in this year’s seminar is already looking forward to the next constitutional family reunion.
Lisa Dougan is a fourth-year evening student. She is a Staff Writer for Juris, a Comment Editor for the Duquesne Business Law Journal, and a member of the Corporate Law Society and the Women's Law Association. Lisa received a bachelor's degree in biochemistry and a master's degree in forensic science and law from Duquesne. She can be reached at ldougan46@yahoo.com.
