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Full-Text Articles in Law
Constitutional Interpretation In Law-Making: China’S Invisible Constitutional Enforcement Mechanism, Tom Ginsburg, Yan Lin
Constitutional Interpretation In Law-Making: China’S Invisible Constitutional Enforcement Mechanism, Tom Ginsburg, Yan Lin
Tom Ginsburg
Abstract: It is conventional wisdom that China’s Constitution is unenforceable, and plays little role in China’s legal system, other than as a symbolic document. This view rests on the fact that the Supreme Court has no power to interpret the Constitution. The formal body with interpretive power, the Standing Committee of the National People’s Congress, has never issued an official interpretation. Despite this apparent lack of enforcement, we argue that China’s Constitution indeed plays an increasingly important role within the party-state. It does through not through the courts but through the legislative process, in which formal requirements of constitutional review …
We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti
We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti
Tom Ginsburg
We like to think that constitutions are expressions of distinctly national values, speaking for “We the People.” This is especially true of constitutional preambles, which often recount distinct events from national history and speak to national values. This article challenges this popular view by demonstrating the global influences on constitutional preambles. It does so using a new set of tools in linguistic and textual analysis, applied to a database of most constitutional preambles written since 1789. Arguing that legal language can be analogized to memes or genetic material, we analyze “horizontal” transfer of language across countries and “vertical” transfers within …
We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti
We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti
Tom Ginsburg
No abstract provided.
Getting To Rights: Treaty Ratification, Constitutional Convergence, And Human Rights Practice, Tom Ginsburg, Zachary Elkins, Beth Simmons
Getting To Rights: Treaty Ratification, Constitutional Convergence, And Human Rights Practice, Tom Ginsburg, Zachary Elkins, Beth Simmons
Tom Ginsburg
This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not …
On The Interpretability Of Law: Lessons From The Decoding Of National Constitutions, James Melton, Tom Ginsburg
On The Interpretability Of Law: Lessons From The Decoding Of National Constitutions, James Melton, Tom Ginsburg
Tom Ginsburg
An implicit element of many theories of constitutional enforcement is the degree to which those subject to constitutional law can agree on what its provisions mean (call this constitutional interpretability). Unfortunately, there is little evidence on baseline levels of constitutional interpretability or the variance therein. This article seeks to fill this gap in the literature, by assessing the effect of contextual, textual and interpreter characteristics on the interpretability of constitutional documents. Constitutions are found to vary in their degree of interpretability. Surprisingly, however, the most important determinants of variance are not contextual (for example, era, language or culture), but textual. …
Guarding The Guardians: Judicial Councils And Judicial Independence, Tom Ginsburg, Nuno Garoupa
Guarding The Guardians: Judicial Councils And Judicial Independence, Tom Ginsburg, Nuno Garoupa
Tom Ginsburg
This Article uses comparative evidence to inform the ongoing debate about the selection and discipline of judges. In recent decades, many countries around the world have created judicial councils, institutions designed to maintain an appropriate balance between judicial independence and accountability. Our Article has two aims. First, we provide a theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we test the extent to which different designs of judicial council affect judicial quality. We find that there is little relationship between councils and quality. We also offer a positive explanation for …
Constitutional Afterlife: The Continuing Impact Of Thailand's Postpolitical Constitution, Tom Ginsburg
Constitutional Afterlife: The Continuing Impact Of Thailand's Postpolitical Constitution, Tom Ginsburg
Tom Ginsburg
Thailand’s constitution of 1997 introduced profound changes into the country’s governance, creating a “postpolitical” democratic structure in which an intricate array of guardian institutions served to limit the role of elected politicians. Ultimately, the constitutional structure was undermined in a military coup against populist billionaire Thaksin Shinawatra, who had taken over many of the institutions designed to constrain political power. Nonetheless, the 1997 constitution appears to be having a significant afterlife, in that its institutional innovations have survived the enactment of a new Constitution and continue to constrain the political process. This article describes the Thai situation and speculates on …
The Comparative Law And Economics Of Judicial Councils, Tom Ginsburg, Nuno Garoupa
The Comparative Law And Economics Of Judicial Councils, Tom Ginsburg, Nuno Garoupa
Tom Ginsburg
No abstract provided.