Academic Year 2009-2010
Marta Cartabia is Professor of Constitutional Law in the Faculty of Law of the University of Milano-Bicocca, where she has taught the Jean Monnet Course in European Constitutional Law since 2005. She received her Ph. D. in Law from the European University Institute in Florence, Italy, and was a clerk in the Italian Constitutional Court from 1993-1996. She is Senior Expert for Italy of the Fundamental Rights Agency Legal Experts (FRALEX). She is a member of the editorial boards of several journals including Quaderni Costituzionali, Revista Española de derecho europeo and Rivista Italiana di Diritto Pubblico Comunitario. Cartabia is the author or editor of several books - including most recently I diritti in azione (2007) – and articles including “Prospects for National Parliaments in EU Affairs,” in Genesis and destiny of the European Constitution (2007), and Europe and Rights: Taking Dialogue Seriously, in "European Constitutional Law Review" (Volume 5, Issue 01, February 2009, pp 5-31).
The Age of New Rights
In recent years, national and international courts are the theater of relevant legal changes affecting the most crucial sectors of social life: many “new fundamental rights” have been created and they cover a wide range of subjects, including all the bio-ethics issues, the environmental emergency, family law, immigration law, the role of religion in the public sphere and the all the intercultural issues, indeed. In a word, the topical questions are all tackled by Courts in Europe sub specie of “new rights”. Even in the United States, where the judicial expansion of fundamental rights has a longer history through interpretations of substantive due process and equal protection, recent examples show that the trend has continued and perhaps intensified.
The research aims at discovering the conceptual, legal and procedural matrix of the new rights. From a conceptual point of view, they seem to be rooted in the intersection between the right to privacy (or right to self-determination), and the principle of equality or non discrimination. Within legal reasoning, an important role seems to be played by judicial uses of foreign and comparative law. The recognition of new rights also has significant consequences on the use of different standards of review and burdens of the proof. Procedurally, the effect of rules that facilitate the participation of so-called “special interests” in fundamental rights litigation is worth considering carefully. The method of research will focus on analysis of judicial decisions.