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Against Constitutional Excess: Tocquevillian Reflections On International Investment Law, David Schneiderman Mar 2018

Against Constitutional Excess: Tocquevillian Reflections On International Investment Law, David Schneiderman

University of Chicago Law Review

Contributing to democratic malaise in operative democracies are transnational constitution-like commitments, such as those found in international investment law. Among its constraints, citizens are legally discouraged from initiating policy innovations that will upset investment expectations. Yet, one of the great virtues of democratic society, according to Alexis de Tocqueville, is the capacity of people to change their minds: an ability to repair mistakes. Though the threat of continual legislative innovation resulted in costly instability, it served as a catalyst for an energetic public and private life. So as to tame the threat of intemperate change, Tocqueville looked to the guiding …


Populist Constitutions, David Landau Mar 2018

Populist Constitutions, David Landau

University of Chicago Law Review

This Essay draws on recent academic definitions of populism and recent examples of its use in order to show that there is an affinity between populism and widespread constitutional change. It argues that populists use constitutional change to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists. Thus, access to the tools of constitutional change may accentuate both the promise of populism as a corrective to stagnating liberal democracies and the threat that it poses to those constitutional orders. I also …


Norming In Administrative Law, Jonathan Masur, Eric A. Posner Mar 2018

Norming In Administrative Law, Jonathan Masur, Eric A. Posner

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.


Autocratic Legalism, Kim L. Scheppele Mar 2018

Autocratic Legalism, Kim L. Scheppele

University of Chicago Law Review

Buried within the general phenomenon of democratic decline is a set of cases in which charismatic new leaders are elected by democratic publics and then use their electoral mandates to dismantle by law the constitutional systems they inherited. These leaders aim to consolidate power and to remain in office indefinitely, eventually eliminating the ability of democratic publics to exercise their basic democratic rights, to hold leaders accountable, and to change their leaders peacefully. Because these “legalistic autocrats” deploy the law to achieve their aims, impending autocracy may not be evident at the start. But we can learn to spot the …


Democracy’S Deficits, Samuel Issacharoff Mar 2018

Democracy’S Deficits, Samuel Issacharoff

University of Chicago Law Review

Barely a quarter century after the collapse of the Soviet empire, democracy has entered an intense period of public scrutiny. The election of President Donald Trump and the Brexit vote are dramatic moments in a populist uprising against the postwar political consensus of liberal rule. But they are also signposts in a process long in the making, yet perhaps not fully appreciated until the intense electoral upheavals of recent years. The current moment is defined by distrust of the institutional order of democracy and, more fundamentally, of the idea that there is a tomorrow and that the losers of today …


Terrorism And Democratic Recession, Aziz Huq Mar 2018

Terrorism And Democratic Recession, Aziz Huq

University of Chicago Law Review

This Essay examines the potential causal mechanisms that plausibly link the occurrence of terrorism within a polity to that polity’s democratic decline. That causal pathway is often asserted in political rhetoric about terrorism. But such assertions do not rest on a robust body of theory or empirical knowledge. I hypothesize three pathways along which acts of terrorism might lead to a decline in democratic practices. These three pathways work through the use of emergency powers, the assemblage of a repressive state apparatus, and the emergence of a populist style of politics adverse to democratic contestation. I tentatively conclude that terrorism …


The Wrong Rights, Or: The Inescapable Weaknesses Of Modern Liberal Constitutionalism, Richard A. Epstein Mar 2018

The Wrong Rights, Or: The Inescapable Weaknesses Of Modern Liberal Constitutionalism, Richard A. Epstein

University of Chicago Law Review

My thesis is that modern progressive or social-democratic liberal constitutionalism invites economic decline and political polarization, even if it avoids the massive institutional rot that pervades authoritarian regimes. Its key omission is its conscious decision not to specify the protected individual rights, of which individual autonomy, private property, and contractual freedom are key. Yet ironically, not one of these is typically listed in the standard human-rights statutes, which instead focus on three different factors: positive rights to education, health, and housing; overcoming the widening inequality of wealth; and demarcating an ever-larger list of improper grounds for discrimination. Regrettably, the modern …


Competing Orders? The Challenge Of Religion To Modern Constitutionalism, Ran Hirschl, Ayelet Shachar Mar 2018

Competing Orders? The Challenge Of Religion To Modern Constitutionalism, Ran Hirschl, Ayelet Shachar

University of Chicago Law Review

Religion and constitutionalism often collide on both substantive values and policy preferences. Moving beyond the familiar angle of divergent value sets, this Essay critically highlights the structural, “clash of orders” features that make religion a credible rival and a serious challenger to modern constitutionalism. We identify three additional dimensions of the potential clash between religion and constitutionalism in a world of resurgent populist nationalism: (1) the structural logic of competing orders; (2) the strategic reliance on religious identity markers to generate unequal civic standings among formally equal citizens; and (3) the transnational nature of religious solidarity and affiliation, which permits …


Liberal Constitutionalism And Economic Inequality, Rosalind Dixon, Julie Suk Mar 2018

Liberal Constitutionalism And Economic Inequality, Rosalind Dixon, Julie Suk

University of Chicago Law Review

Economic inequality is rising in democracies across the world and poses a clear threat to both the stability and legitimacy of liberal constitutional models. Can liberal constitutionalism respond to this threat? Or are there inherent limits to the liberal model that prevent an effective response? This Essay explores these questions by surveying the range of possible structural and rights-based constitutional responses to economic inequality, as well as possible obstacles to these responses— including problems of definition, leveling up versus down, unintended or counterproductive consequences, and institutional path dependence.


Courts’ Limited Ability To Protect Constitutional Rights, Adam Chilton, Mila Versteeg Mar 2018

Courts’ Limited Ability To Protect Constitutional Rights, Adam Chilton, Mila Versteeg

University of Chicago Law Review

Constitutional scholars have generally put faith in courts’ ability to improve the protection of constitutional rights. While courts have limited means to enforce their own decisions, the literature suggests that their decisions are implemented either when courts enjoy strong legitimacy or when they bring functional benefits to other branches. In this Essay, we call this conventional wisdom into question. We present data suggesting that the existence of independent courts does not increase the probability that governments will respect constitutional rights. We outline four reasons why this might be so. First, courts that too frequently obstruct the political branches face court-curbing …


The Coming Demise Of Liberal Constitutionalism?, Tom Ginsburg, Aziz Huq, Mila Versteeg Mar 2018

The Coming Demise Of Liberal Constitutionalism?, Tom Ginsburg, Aziz Huq, Mila Versteeg

University of Chicago Law Review

No abstract provided.


Table Of Contents Mar 2018

Table Of Contents

University of Chicago Law Review

No abstract provided.


Judicial Mistakes In Discovery, Diego Zambrano Feb 2018

Judicial Mistakes In Discovery, Diego Zambrano

Articles

No abstract provided.


Is Qualified Immunity Unlawful?, William Baude Feb 2018

Is Qualified Immunity Unlawful?, William Baude

Articles

No abstract provided.


Stalling, Conflict, And Settlement, William Hubbard Feb 2018

Stalling, Conflict, And Settlement, William Hubbard

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.


How To Lose A Constitutional Democracy, Aziz Huq, Tom Ginsburg Feb 2018

How To Lose A Constitutional Democracy, Aziz Huq, Tom Ginsburg

Articles

No abstract provided.


Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan Jan 2018

Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan

Articles

No abstract provided.


Partisan Balance With Bite, Daniel Hemel, Brian D. Feinstein Jan 2018

Partisan Balance With Bite, Daniel Hemel, Brian D. Feinstein

Articles

No abstract provided.


Economic Analysis In Labor Regulation, Hiba Hafiz Jan 2018

Economic Analysis In Labor Regulation, Hiba Hafiz

Articles

No abstract provided.


Does The Priest And Klein Model Travel? Testing Litigation Selection Hypotheses With Foreign Court Data, Yun-Chien Chang, William Hubbard Jan 2018

Does The Priest And Klein Model Travel? Testing Litigation Selection Hypotheses With Foreign Court Data, Yun-Chien Chang, William Hubbard

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.


Institutional Loyalties In Constitutional Law, Aziz Huq, David Fontana Jan 2018

Institutional Loyalties In Constitutional Law, Aziz Huq, David Fontana

Articles

No abstract provided.


Stock Market Reactions To India's 2016 Demonetization: Implications For Tax Evasion, Corruption, And Financial Constraints, Dhammika Dharmapala, Vikramaditya S. Khanna Jan 2018

Stock Market Reactions To India's 2016 Demonetization: Implications For Tax Evasion, Corruption, And Financial Constraints, Dhammika Dharmapala, Vikramaditya S. Khanna

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.


Decisionmaking On Multimember Courts: The Assignment Power In The Circuits, Daniel Hemel, Kyle Rozema Jan 2018

Decisionmaking On Multimember Courts: The Assignment Power In The Circuits, Daniel Hemel, Kyle Rozema

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.


The Myth Of Trade Usages: A Talk, Lisa Bernstein Jan 2018

The Myth Of Trade Usages: A Talk, Lisa Bernstein

Articles

No abstract provided.


The Case Against Passive Shareholder Voting, Dorothy Shapiro Lund Jan 2018

The Case Against Passive Shareholder Voting, Dorothy Shapiro Lund

Articles

No abstract provided.


The Wrong Rights, Or: The Inescapable Weaknesses Of Modern Liberal Constitutionalism, Richard A. Epstein Jan 2018

The Wrong Rights, Or: The Inescapable Weaknesses Of Modern Liberal Constitutionalism, Richard A. Epstein

Articles

No abstract provided.


Democratic Backsliding And The Rule Of Law, Tom Ginsburg Jan 2018

Democratic Backsliding And The Rule Of Law, Tom Ginsburg

Articles

No abstract provided.


The Origins Of The Espionage Act Of 1917: Was Judge Learned Hand's Understanding Of The Act Defensible?, Geoffrey R. Stone Jan 2018

The Origins Of The Espionage Act Of 1917: Was Judge Learned Hand's Understanding Of The Act Defensible?, Geoffrey R. Stone

Articles

No abstract provided.


A Not Quite Contemporary View Of Privacy, Richard A. Epstein Jan 2018

A Not Quite Contemporary View Of Privacy, Richard A. Epstein

Articles

No abstract provided.


Separation Of Powers Metatheory, Aziz Huq Jan 2018

Separation Of Powers Metatheory, Aziz Huq

Articles

No abstract provided.