As a result, domestic courts and international tribunals are enforcing constitutionally enshrined environmental rights with growing frequency, reflecting basic human rights to clean water, air, land, and environmental opportunity. Courts have even read environmental rights into constitutions that do not explicitly mention them or where judicial enforcement has been nominally withdrawn. Courts in Southern Asia have led the way, inferring environmental rights from other constitutionally entrenched rights, most commonly a “right to life.” This trend has been most notable in India, Pakistan, Bangladesh, and Nepal where such rights have been read in tandem with directive principles aimed at promoting environmental policy to embody substantive environmental rights.

As we shall see, constitutionally embedded rights are both fairly ubiquitous in form, and fairly challenging in function.

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.

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 deemed to be constitutionally determined, the less room there is for political negotiation and change. And the more courts read into constitutional texts, the more value-laden their judgments, the less legitimacy they have.

But the trend in Latin America challenges this conventional wisdom: the form that judicial activism is taking is enhancing, rather than eroding, both judicial authority and democratic decision making. And the principal engine that is driving this process is judicial invocation of the constitutional right to dignity.

Latin American courts are relying on the constitutional right to human dignity to decide cases more often than one can count, and in an extraordinarily wide range of situations. The Colombian constitutional court has tried to schematize the concept of dignity, noting that the phrase “human dignity” can manifest itself in two ways: from the point of view of the concrete object of protection and from the point of view of its normative function. With respect to the first perspective, the Court has identified three clear and distinct lines: human dignity can be understood (1) as autonomy or the possibility of designing a life plan and self-determination according to his or her own desires; (2) as entailing certain concrete material conditions of life; and (3) as the intangible value of physical and moral integrity. As shorthand, it characterizes these three dimensions, respectively, as living as one wishes, living well, and living without humiliation. In Part One, this paper illustrates this schema by discussing cases from throughout the region, showing how the courts have interpreted the right to dignity to insist on protection for a wide range of interests. Part Two explores the normative function of Latin America’s dignity jurisprudence by demonstrating the mutually reinforcing connection between dignity, as described by the cases, and democratic citizenship.

We conclude that judicial receptivity to fundamental environmental rights provisions embedded in domestic constitutions seems to belie predictable patterns. We also conclude that no single explanation emerges for the relative dearth of cases giving force to these provisions. Although courts have not been as enthusiastic to embrace environmental rights as some activists would have liked, there is noticeable and steady progress toward their growing recognition in courts throughout the world. And as constitutional courts become more aware of what their peers are doing, this momentum is likely to increase. Moreover, even where courts have not accepted the constitutional environmental arguments, the mere fact that such arguments are being made and considered augments the attention that constitutional fundamental environmental rights receive in public discourse. And this, in itself, can meaningfully contribute to the success of environmental claims in the future. The result is that collectively the judiciary will continue to play a necessary if not sufficient role in the vindication of fundamental environmental rights worldwide.

The incremental harm doctrine applies in libel litigation where the challenged statement causes no significant damage to the plaintiff's reputation beyond the harm caused by the remainder of the publication. If the defendant can show that the publication would have had exactly the same effect on the plaintiff's reputation had the challenged portion been excised, then the incremental harm defense compels judgment for the defendant. The doctrine is currently not in good health, and some might even say that it is beyond hope. This article is an effort to breathe some life into it. Even though federal courts have rejected the doctrine, state courts are free to adopt it, as a matter of state tort or even state constitutional law.

This article discusses the early cases which accepted the incremental harm doctrine as a matter either of constitutional law, common law, or merely logic; how it (along with its evil twin, the libel-proof plaintiff doctrine) were rejected by then-Judge Scalia; but how it finds support in traditional theories of state libel law, and comports with the limitations on recovery imposed by the Supreme Court under the First Amendment.

Although there is some common ground among these sets of cases, they ultimately exemplify three very different jurisprudential attitudes towards redistricting questions, and towards constitutional questions generally. In fact, the different results in these cases are largely attributable to the jurisprudential choices each Court has made. In these cases, the Canadian Court has taken a pragmatist stance, while the Australian approach is more textualist; the American redistricting cases may be characterized as idealist. Since no Constitution mandates any particular jurisprudential model, a court adopting one approach is clearly choosing from among available options. Whatever model the court chooses determines (and is determined by) not just its approach to constitutional interpretation, but also the court's perception of its own role in the nation's political system, and its conception of the nation's electoral process.

This article argues that there is a difference between mere transitional justice and effective transformative justice, explaining the importance of the transformational dimension of justice with particular attention to the role of reconciliation. Institutions of transitional justice are most likely to be transformative if they are tailored to the time and place in which they operate, and are responsive to the specific transitional conditions that exist.

The article then applies the theory of transformative justice to two distinct responses to national trauma: the South African Truth and Reconciliation Commission that was designed to respond to the end of apartheid and the gacaca courts in Rwanda in the aftermath of the 1994 genocide in that country. Because the TRC and the gacaca courts are distinguishable in every meaningful respect, they illustrate, when considered together, the broad and creative possibilities of the middle path of transformative justice.