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Articles 1 - 30 of 55
Full-Text Articles in Law
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 …
What Can Constitutions Do?: The Afghan Case, Tom Ginsburg, Aziz Huq
What Can Constitutions Do?: The Afghan Case, Tom Ginsburg, Aziz Huq
Tom Ginsburg
No abstract provided.
Fruit Of The Poisoned Vine? Some Comparative Observations On Chile’S Constitution, Tom Ginsburg
Fruit Of The Poisoned Vine? Some Comparative Observations On Chile’S Constitution, Tom Ginsburg
Tom Ginsburg
No abstract provided.
Does De Jure Independence Really Matter?: A Reevaluation Of Explanations For Judicial Independence, Tom Ginsburg, James Melton
Does De Jure Independence Really Matter?: A Reevaluation Of Explanations For Judicial Independence, Tom Ginsburg, James Melton
Tom Ginsburg
The relationship between de jure and de facto judicial independence is much debated in the literature on judicial politics. Some studies find no relationship between the formal rules governing the structure of the judiciary and de facto judicial independence, while others find a tight correlation. This article sets out to reassess the relationship between de jure and de facto judicial independence using a new theory and an expanded data set. De jure institutional protections, we argue, do not work in isolation but work conjunctively, so that particular combinations of protections are more likely to be effective than others. We find …
[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Tom Ginsburg, Susan N. Mart
[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Tom Ginsburg, Susan N. Mart
Tom Ginsburg
No abstract provided.
Constitutional Islamization And Human Rights: The Surprising Origin And Spread Of Islamic Supremacy In Constitutions, Tom Ginsburg
Constitutional Islamization And Human Rights: The Surprising Origin And Spread Of Islamic Supremacy In Constitutions, Tom Ginsburg
Tom Ginsburg
No abstract provided.
Constitutionalism: East Asian Antecedents, Tom Ginsburg
Constitutionalism: East Asian Antecedents, Tom Ginsburg
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 …
Beyond Presidentialism And Parliamentarism, Tom Ginsburg, Jose Cheibub, Zachary Elkins
Beyond Presidentialism And Parliamentarism, Tom Ginsburg, Jose Cheibub, Zachary Elkins
Tom Ginsburg
No abstract provided.
Why Do Countries Adopt Constitutional Review?, Tom Ginsburg, Mila Versteeg
Why Do Countries Adopt Constitutional Review?, Tom Ginsburg, Mila Versteeg
Tom Ginsburg
The past few decades have witnessed a sweeping trend toward constitutional review. This movement is arguably one of the most important phenomena in late twentieth and early twenty-first century government. Yet the trend poses important puzzles of political economy: Why would self-interested governments willingly constrain themselves by constitutional means? What explains the global move towards judicial supremacy? Though different theories have been proposed, none have been systematically tested against each other using quantitative empirical methods. In this paper we rely on a unique new dataset on constitutional review for 204 countries for the period 1781-2011 to test various theories that …
When To Overthrow Your Government: The Right To Resist In The World’S Constitutions, Tom Ginsburg, Daniel Lansberg-Rodrigues, Mila Versteeg
When To Overthrow Your Government: The Right To Resist In The World’S Constitutions, Tom Ginsburg, Daniel Lansberg-Rodrigues, Mila Versteeg
Tom Ginsburg
On December 17 2010, a young Tunisian street vendor protesting an abusive police official set off a wave of democratic uprisings throughout the Arab world. In rising up against their governments, the peoples of the Arab Spring were confronting an age-old problem in political theory: when is it acceptable to rise up against an unjust authority? This question is not only of great importance to the peoples of the Middle East today, but was also of profound interest to the American founders and, through them, has informed the very basis of modern constitutionalism. It is perhaps unsurprising then that many …
On The Interpretability Of Law: Lessons From The Decoding Of National Constitutions, Tom Ginsburg, James Melton, Zachary Elkins, Kalev Leetaru
On The Interpretability Of Law: Lessons From The Decoding Of National Constitutions, Tom Ginsburg, James Melton, Zachary Elkins, Kalev Leetaru
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. …
Hybrid Judicial Career Structures: Reputation Vs. Legal Tradition, Tom Ginsburg, Nuno Garoupa
Hybrid Judicial Career Structures: Reputation Vs. Legal Tradition, Tom Ginsburg, Nuno Garoupa
Tom Ginsburg
Scholars have distinguished career from recognition judiciaries, largely arguing that they reflect different legal cultures and traditions. We start by noting that the career/recog- nition distinction does not correspond perfectly to the civil law/common law distinction, but rather that there are pockets of each institutional structure within regimes that are dominated by the other type. We discuss the causes and implications of this phenom- enon, arguing that institutional structure is better explained through a theory of judicial reputation/legitimacy than through a theory of legal origin or tradition. We provide some preliminary empirical support for our account.
Deciding Not To Decide: Deferral In Constitutional Design, Tom Ginsburg, Rosalind Dixon
Deciding Not To Decide: Deferral In Constitutional Design, Tom Ginsburg, Rosalind Dixon
Tom Ginsburg
In designing constitutions, constitutional drafters often face constraints that cause them to leave things “undecided”—or to defer decision-making on certain constitutional issues to the future. They do this both through adopting vague constitutional language, and through spe- cific language that explicitly delegates issues to future legislators (i.e. “by law” clauses). The aim of this article is to deepen our understanding of this second, to date largely un-examined, tool of constitutional design. We do so by exploring: (1) the rationale for constitutional de- ferral generally; (2) the potential alternatives to “by law” clauses as a means of addressing concerns about constitutional …
Courts And New Democracies: Recent Works, Tom Ginsburg
Courts And New Democracies: Recent Works, Tom Ginsburg
Tom Ginsburg
Recent literature on comparative judicial politics reveals a variety of roles that courts adopt in the process of democratization. These include, very rarely, serving as a trigger for democratization and, more commonly, serving as downstream guarantor for departing autocrats or as downstream consolidator of democracy. In light of these roles, this article reviews six relatively recent books: Courts in Latin America, edited by Helmke and Rios-Figueroa (2011); Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile, by Hilbink (2007); Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Couso, Huneeus, and Sieder (2011); The Legacies of …
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. …
Comments On Law And Versteeg’S The Declining Influence Of The United States Constitution, Tom Ginsburg, Zachary Elkins, James Melton
Comments On Law And Versteeg’S The Declining Influence Of The United States Constitution, Tom Ginsburg, Zachary Elkins, James Melton
Tom Ginsburg
No abstract provided.
The Empirical Turn In International Legal Scholarship, Tom Ginsburg, Gregory Schaffer
The Empirical Turn In International Legal Scholarship, Tom Ginsburg, Gregory Schaffer
Tom Ginsburg
No abstract provided.
Pitfalls Of Measuring The Rull Of Law, Tom Ginsburg
Pitfalls Of Measuring The Rull Of Law, Tom Ginsburg
Tom Ginsburg
The recent demand for new measures of the rule of law confronts several meth- odological challenges. This article calls for careful attention to fundamental social science ideas of conceptualization and measurement in approaching the rule of law. Efforts to measure complex social phenomena such as the rule of law are chal- lenging, and thus require that researchers and policy makers pay attention to the cautionary rules of social science in their efforts. Violating these basic rules risks producing measures that are not reliable or valid, and could be a bad basis for policymaking. This paper demonstrates some of the pitfalls …
On The Evasion Of Executive Term Limits, Tom Ginsburg
On The Evasion Of Executive Term Limits, Tom Ginsburg
Tom Ginsburg
Executive term limits are pre-commitments through which the polity restricts its ability to retain a popular executive down the road. But in recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, or sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This article reviews the normative debate over term limits and …
An Economic Interpretation Of The Pashtunwali, Tom Ginsburg
An Economic Interpretation Of The Pashtunwali, Tom Ginsburg
Tom Ginsburg
No abstract provided.
Empiricism And The Rising Incidence Of Co-Authorship In Law, Tom Ginsburg, Thomas J. Miles
Empiricism And The Rising Incidence Of Co-Authorship In Law, Tom Ginsburg, Thomas J. Miles
Tom Ginsburg
The recent growth of empirical scholarship in law, which some have termed “empirical legal studies,” has received much attention. A less-noticed implication of this trend is its potential impact on the manner of scholarly production in legal academia. A common pre- diction is that academic collaboration rises with scholarly specializa- tion. As the complexity of a field grows, more human capital and more diverse types of human capital are needed to make a contribu- tion. This Article presents two tests of whether empiricism has spurred more coauthorship in law. First, the Article shows that the fraction of articles in the …
In Defense Of Imperialism? The Rule Of Law And The State-Building Project, Tom Ginsburg
In Defense Of Imperialism? The Rule Of Law And The State-Building Project, Tom Ginsburg
Tom Ginsburg
No abstract provided.
Studying Japanese Law Because It's There, Tom Ginsburg
Studying Japanese Law Because It's There, Tom Ginsburg
Tom Ginsburg
No abstract provided.
Public Choice And Constitutional Design, Tom Ginsburg
Public Choice And Constitutional Design, Tom Ginsburg
Tom Ginsburg
This chapter reviews the literature on public choice theory and constitutional design, focusing in particular on the sub-discipline of constitutional political economy. The basic framework of constitutional political economy has been in place for several decades and has produced some important insights into particular institutions. Other institutions, however, have been ignored, and there is a relatively small amount of empirical work testing the propositions. The chapter summarizes the work to date and identifies areas for more attention in the future. The chapter first reviews the core assumption that constitutional politics are really different than ordinary politics, and the corollary that …
Judicial Independence In East Asia: Implications For China, Tom Ginsburg
Judicial Independence In East Asia: Implications For China, Tom Ginsburg
Tom Ginsburg
This chapter explores the experience of China’s East Asian neighbors with regard to judicial independence, with an eye toward drawing lessons for China’s own reforms. Japan, Korea and Taiwan collectively provide a useful vantage point to examine developments in China because their rapid growth from the 1950s through the 1990s represents that greatest sustained example of rapid growth in world history. The only comparable period of growth is that of contemporary China, now nearing the end of its third decade. The East Asian cases are also relevant to China because the countries in the region share certain cultural traditions, and …
The Constitutional Court And The Judicialization Of Korean Politics, Tom Ginsburg
The Constitutional Court And The Judicialization Of Korean Politics, Tom Ginsburg
Tom Ginsburg
The Constitutional Court of Korea recently celebrated its 20th anniversary, and has become one of the most respected institutions in Korean society. It is also one of the most important constitutional courts in the world. This book chapter describes the court and some of its important cases, while tracing the sources of its success.
Eastphalia As A Return To Westphalia, Tom Ginsburg
Eastphalia As A Return To Westphalia, Tom Ginsburg
Tom Ginsburg
Prognosticators of the international scene have focused on two claims on which there is broad agreement: First, globalization is producing deep integration among nations, moving in the direction of quasi-constitutional global governance; and, second, Asia will significantly influence the world in decades to come. These two claims are in tension with each other. Asian countries have hardly been leaders in deep integration of the constitutionalist variety, though they have been effective participants in globalized markets. Projecting forward, one expects an Asia-dominated international law to emphasize traditional concerns of sovereignty, non-interference, and mutual cooperation rather than the constitutionalist vision of supranational …
The Arbitrator As Agent: Why Deferential Review Is Not Always Pro-Arbitration, Tom Ginsburg
The Arbitrator As Agent: Why Deferential Review Is Not Always Pro-Arbitration, Tom Ginsburg
Tom Ginsburg
No abstract provided.
Written Constitutions And The Administrative State: On The Constitutional Character Of Administrative Law, Tom Ginsburg
Written Constitutions And The Administrative State: On The Constitutional Character Of Administrative Law, Tom Ginsburg
Tom Ginsburg
No abstract provided.