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Full-Text Articles in Law
Amending Constituting Identity, Rosalind Dixon
Amending Constituting Identity, Rosalind Dixon
Public Law and Legal Theory Working Papers
Constitutional amendment procedures can create constitutional change in two ways: by providing evidence of popular support for constitutional change, and by changing the textual basis for subsequent acts of constitutional interpretation. Both mechanisms have clearly also succeeded, in various countries, in creating changes in the domain of constitutional identity. The question the essay investigates is whether there is nonetheless something peculiar about this domain that makes it especially difficult to succeed in using both these amendment mechanisms, simultaneously, in the quest for constitutional change. To explore this question, the essay draws on two distinct attempts to “amend” constitutional identity in …
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
Public Law and Legal Theory Working Papers
No abstract provided.
On The Evasion Of Executive Term Limits, Tom Ginsburg, James Melton, Zachary Elkins
On The Evasion Of Executive Term Limits, Tom Ginsburg, James Melton, Zachary Elkins
Public Law and Legal Theory Working Papers
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, 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 identifies …
Constitutional Specificity, Unwritten Understandings And Constitutional Agreement, Tom Ginsburg
Constitutional Specificity, Unwritten Understandings And Constitutional Agreement, Tom Ginsburg
Public Law and Legal Theory Working Papers
No abstract provided.
The Constitution Of The Roman Republic: A Political Economy Perspective, Eric A. Posner
The Constitution Of The Roman Republic: A Political Economy Perspective, Eric A. Posner
Public Law and Legal Theory Working Papers
The constitution of the Roman Republic featured a system of checks and balances that would eventually influence the American founders, yet it had very different characteristics from the system of separation of powers that the founders created. The Roman senate gave advice but did not legislate; the people voted directly on bills and appointments in popular assemblies; and a group of magistrates, led by a pair of consuls, proposed bills, brought prosecutions, served as judges, led military forces, and performed other governmental functions. This paper analyzes the Roman constitution from the perspective of agency theory, and argues that the extensive …
The Limits Of Constitutional Convergence, Eric A. Posner, Rosalind Dixon
The Limits Of Constitutional Convergence, Eric A. Posner, Rosalind Dixon
Public Law and Legal Theory Working Papers
Globalization, some legal scholars suggest, is a force that makes increasing convergence among different countries' constitutions more or less inevitable. This Essay explores this hypothesis by analyzing both the logic – and potential limits – to four different mechanisms of constitutional convergence: first, changes in global “superstructure”; second, comparative learning; third, international coercion; and fourth, global competition. For each mechanism, it shows, quite special conditions will in fact be required before global convergence is likely even at the level of legal policy. At a constitutional level, it further suggests, it will be even rarer for these mechanisms to create wholesale …
Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry
Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry
Public Law and Legal Theory Working Papers
This paper targets the intersection of two generally distinct literatures: political control of administrative agencies and distributive politics. Based on a comprehensive database of federal spending that tracks allocations from each agency to each congressional district for every year from 1984 through 2007, we analyze the responsiveness of agency spending decisions to presidential and congressional influences. Our research design uses district-by-agency fixed effects to identify the effects of a district’s political characteristics on agency spending allocations. Because most agencies distribute federal funds, we are able to provide empirical evidence about the relationship between structural features of administrative agencies and the …
Willpower Taxes, Lee Anne Fennell
Willpower Taxes, Lee Anne Fennell
Public Law and Legal Theory Working Papers
Self-control and related concepts appear regularly in tax discussions, but often they are invoked hazily or blurred together with other aspects of choice over time. Despite the evident relevance of willpower to consumption patterns, wealth accumulation, and, ultimately, well-being, there is no consensus about whether and how heterogeneity along this dimension should factor into tax policy. There is support in the tax literature for such divergent responses as funneling more resources to low-willpower people, penalizing them for their lapses, and limiting their choices. Whether we should follow one of these approaches, or some other approach entirely, requires a careful analysis …
Pseudonymous Litigation, Lior Strahilevitz
Pseudonymous Litigation, Lior Strahilevitz
Public Law and Legal Theory Working Papers
No abstract provided.
Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Public Law and Legal Theory Working Papers
No abstract provided.
Risk As A Proxy For Race, Bernard E. Harcourt
Risk As A Proxy For Race, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
Voters, Non-Voters, And The Implications Of Election Timing For Public Policy, Jacob Gersen, Christopher R. Berry
Voters, Non-Voters, And The Implications Of Election Timing For Public Policy, Jacob Gersen, Christopher R. Berry
Public Law and Legal Theory Working Papers
This paper makes use of variation in the timing of local elections to shed light on one of the core questions in democratic politics: what would happen if everyone voted? Does a low voter turnout rate imply that a small subset of special interest voters controls politics and policy? Or, are voters largely representative of non-voters such that neither the outcomes of elections nor resulting public policies would change even if everyone participated? Rather than rely on surveys of nonvoters to extrapolate their hypothetical behavior, we rely on a natural experiment created by a 1980s change in the California Election …
Climate Regulation And The Limits Of Cost-Benefit Analysis, Eric A. Posner, Jonathan Masur
Climate Regulation And The Limits Of Cost-Benefit Analysis, Eric A. Posner, Jonathan Masur
Public Law and Legal Theory Working Papers
No abstract provided.
Legal Formalism And Legal Realism: What Is The Issue?, Brian Leiter
Legal Formalism And Legal Realism: What Is The Issue?, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
Low Stakes And Constitutional Interpretation, Adam M. Samaha
Low Stakes And Constitutional Interpretation, Adam M. Samaha
Public Law and Legal Theory Working Papers
Many of us engage in debates, sometimes intense debates, over the proper method of constitutional interpretation for judges. This paper offers six reasons to believe that these debates involve low stakes, in the sense that the choice among competing methods will not determine outcomes in a significant number of important cases. These reasons involve mainstream constraints, overlapping results, indeterminate results, intolerable results, interpretation without decision, and unimportant constitutional decisions. After a suitably brief investigation of theoretical and experimental resources on low-stakes decision making, the paper suggests how debates over constitutional interpretation by judges might proceed if more people become convinced …
Patent Inflation, Jonathan Masur
Patent Inflation, Jonathan Masur
Public Law and Legal Theory Working Papers
No abstract provided.
Randomization And The Fourth Amendment, Tracey L. Meares, Bernard E. Harcourt
Randomization And The Fourth Amendment, Tracey L. Meares, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
The Demarcation Problem In Jurisprudence: A New Case For Skepticism, Brian Leiter
The Demarcation Problem In Jurisprudence: A New Case For Skepticism, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
The Story Of Fcc V. Pacifica Foundatin (And Its Second Life), Adam M. Samaha
The Story Of Fcc V. Pacifica Foundatin (And Its Second Life), Adam M. Samaha
Public Law and Legal Theory Working Papers
This chapter provides a back story to FCC v. Pacifica Foundation — the so-called seven dirty words case, which upheld the Commission's authority to regulate broadcast indecency. The history of broadcast indecency regulation is briefly reviewed, along with the emergence of countercultural radio in the 1960s and 1970s. The chapter then turns to George Carlin and his personal transformation, Pacifica radio and its turbulent times, and the complaint of a Morality in Media board member that instigated FCC proceedings. The litigation history of the case is likewise investigated. This research provides insight into why the Department of Justice switched sides …
A Lot To Ask: Review Essay Of Martha Nussbaum's From Disgust To Humanity: Sexual Orientation And Constitutional Law, Mary Anne Case
A Lot To Ask: Review Essay Of Martha Nussbaum's From Disgust To Humanity: Sexual Orientation And Constitutional Law, Mary Anne Case
Public Law and Legal Theory Working Papers
No abstract provided.
What Feminists Have To Lose In Same-Sex Marriage Litigation, Mary Anne Case
What Feminists Have To Lose In Same-Sex Marriage Litigation, Mary Anne Case
Public Law and Legal Theory Working Papers
This Article highlights both the rewards in accepting and the risks in rejecting a claim of sex discrimination as one constitutional basis for invalidating restrictions on marriage for same-sex couples. It argues that recognition of same-sex marriage and elimination of enforced sex roles are as inextricably intertwined as the duck is with the rabbit in the famous optical illusion. As the Article demonstrates, this has long been clear to opponents, from the pope to David Blankenhorn, but needs to become as clear to proponents and to judges deciding same-sex marriage cases if we are to preserve and extend the liberty …
Booker Reconsidered, Jonathan Masur
Booker Reconsidered, Jonathan Masur
Public Law and Legal Theory Working Papers
No abstract provided.
Possession Puzzles, Lee Anne Fennell
Possession Puzzles, Lee Anne Fennell
Public Law and Legal Theory Working Papers
No abstract provided.
Reunifying Privacy Law, Lior Strahilevitz
Reunifying Privacy Law, Lior Strahilevitz
Public Law and Legal Theory Working Papers
In the years since Samuel Warren and Louis Brandies proposed a unified theory of invasion of privacy tort liability, American information privacy law became increasingly fragmented and decreasingly coherent. William Prosser's 1960 article, Privacy, which heavily influenced the Restatement of Torts, endorsed and hastened this trend toward fragmentation, which spread from tort law to the various statutory branches of information privacy law. This paper argues for the reunification of privacy law in two connected ways. First, Prosser's fragmented privacy tort should be replaced with a unitary tort for invasion of privacy that looks to the private or public nature of …
Temporal Imperialism, Alison Lacroix
Temporal Imperialism, Alison Lacroix
Public Law and Legal Theory Working Papers
Issues of time and temporality pervade American constitutional adjudication, at both a doctrinal and a broader, structural level. The doctrinal issue concerns the extent to which judicial decisions operate forward, backward, or some combination of both across time. The structural issue concerns the related and overarching question of how the Supreme Court, as a court, operates in time, and the temporal division of authority between courts and legislatures. In both contexts, the Supreme Court is an actor in time. This Article examines the Court’s treatment of temporal issues through three case studies: (1) a pair of early decisions in which …
Easterbrook On Academic Freedom, Aziz Huq
Easterbrook On Academic Freedom, Aziz Huq
Public Law and Legal Theory Working Papers
No abstract provided.
The Institutional Dynamics Of Transition Relief, Jonathan Remy Nash, Jonathan Masur
The Institutional Dynamics Of Transition Relief, Jonathan Remy Nash, Jonathan Masur
Public Law and Legal Theory Working Papers
Whether and how to provide transition relief from a change in legal regime is a question of critical importance. Legislatures and agencies effect changes to the law constantly, and affected private actors often seek relief from those changes, at least in the short term. Scholarship on transition relief therefore has focused almost entirely on examining when transition relief might be justified and now recognizes that there may be settings where relief from legal transitions is appropriate. Yet largely absent from these treatments is an answer to the question of which institutional actor is best positioned to decide when legal transition …
Unbundling Risk, Lee Anne Fennell
Unbundling Risk, Lee Anne Fennell
Public Law and Legal Theory Working Papers
No abstract provided.
What Good Is Habeas?, Aziz Huq
What Good Is Habeas?, Aziz Huq
Public Law and Legal Theory Working Papers
This essay examines empirically the effect of the Supreme Court’s 2008 judgment in Boumediene v. Bush, which held that detainees at the Guantánamo Naval Base in Cuba had a right to invoke federal court habeas jurisdiction. Boumediene marked a sharp temporal break because it introduced a new regime of constitutionally mandated habeas jurisdiction for non-citizens detained as “enemy combatants” at Guantánamo. The Boumediene Court envisaged habeas jurisdiction as serving a twofold purpose. First, it claimed habeas vindicates physical liberty interests in line with a long-standing historical understanding of the Writ. Second, the Court viewed habeas as a mechanism to generate …
On Law's Tiebreakers, Adam M. Samaha
On Law's Tiebreakers, Adam M. Samaha
Public Law and Legal Theory Working Papers
Tiebreakers are familiar tools for decisionmaking. Ready examples include penalty shootouts in soccer matches and vice presidents breaking tie votes in the Senate. However, we lack a precise understanding of the concept and a normative theory for the use of tiebreakers. This Article strictly defines a tiebreaker as a kind of lexically inferior decision rule and then builds justifications for tiebreaking decision structures. Concentrating on situations in which ties are considered intolerable, the Article suggests methods for either preventing ties or designing sensible tiebreakers. As to the latter, tradeoffs are identified for the use of random variables, morally relevant variables, …