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Full-Text Articles in Law
The Coming Demise Of Liberal Constitutionalism?, Aziz Huq, Tom Ginsburg, Mila Versteeg
The Coming Demise Of Liberal Constitutionalism?, Aziz Huq, Tom Ginsburg, Mila Versteeg
Articles
No abstract provided.
Courts’ Limited Ability To Protect Constitutional Rights, Adam S. Chilton, Mila Versteeg
Courts’ Limited Ability To Protect Constitutional Rights, Adam S. Chilton, Mila Versteeg
Articles
No abstract provided.
Is Eu Supranational Governance A Challenge To Liberal Constitutionalism?
Is Eu Supranational Governance A Challenge To Liberal Constitutionalism?
University of Chicago Law Review
Does supranational governance present a challenge to liberal constitutionalism? More particularly, has the European Union’s supranational form of governance fueled the rise of illiberal authoritarianism and undermined liberal constitutionalism? This Essay first addresses two related empirical questions associated with this larger query: first, whether the Brexit vote reflected a rise in authoritarianism and a turn against liberal constitutionalism; and second, whether the Euroscepticism to which the process of European integration has given rise has also contributed to the growth of the illiberal far right across the European Union and to the weakening of support for liberal constitutionalism. The third part …
Populist Constitutions, David Landau
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 …
Democracy’S Deficits, Samuel Issacharoff
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 …
Courts’ Limited Ability To Protect Constitutional Rights, Adam Chilton, Mila Versteeg
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 …
Competing Orders? The Challenge Of Religion To Modern Constitutionalism, Ran Hirschl, Ayelet Shachar
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 …
Against Constitutional Excess: Tocquevillian Reflections On International Investment Law, David Schneiderman
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 …
Constitutionalism And The American Imperial Imagination, Aziz Rana
Constitutionalism And The American Imperial Imagination, Aziz Rana
University of Chicago Law Review
Constitutionalism as a legal technology for structuring state power has spread around the world over the last century, as a practice and also as an ideal often linking the institutions of the state to commitments relating to political liberalism and free markets. Yet there is growing evidence that illiberal forms of constitutionalism may now be on the rise internationally. Some of the countervailing forces (economic crisis, national security threats, populism) that may limit the appeal and spread of liberal constitutionalism have been identified in the comparative-law literature as key drivers of this phenomenon. This Essay turns to a different explanation: …
Norming In Adminstrative Law, Jonathan Masur, Eric A. Posner
Norming In Adminstrative Law, Jonathan Masur, Eric A. Posner
Public Law and Legal Theory Working Papers
No abstract provided.
Autocratic Legalism, Kim L. Scheppele
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 …
Judicial Mistakes In Discovery, Diego Zambrano
Is Qualified Immunity Unlawful?, William Baude
Stalling, Conflict, And Settlement, William Hubbard
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
How To Lose A Constitutional Democracy, Aziz Huq, Tom Ginsburg
Articles
No abstract provided.
Partisan Balance With Bite, Daniel Hemel, Brian D. Feinstein
Partisan Balance With Bite, Daniel Hemel, Brian D. Feinstein
Articles
No abstract provided.
Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan
Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan
Articles
No abstract provided.
Economic Analysis In Labor Regulation, Hiba Hafiz
Does The Priest And Klein Model Travel? Testing Litigation Selection Hypotheses With Foreign Court Data, Yun-Chien Chang, William Hubbard
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
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
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
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.
Objections To Treaty Reservations: A Comparative Approach To Decentralized Interpretation, Tom Ginsburg
Objections To Treaty Reservations: A Comparative Approach To Decentralized Interpretation, Tom Ginsburg
Book Sections
No abstract provided.
Personalizing Precommitment, Lee Anne Fennell
Personalizing Precommitment, Lee Anne Fennell
Public Law and Legal Theory Working Papers
This Essay examines the potential for law to facilitate tailored precommitments to help people address self-control problems. This flavor of personalized law is unique in that it is voluntarily chosen and self-administered. There are practical and normative limits on the degree to which people can bind themselves in ways that they cannot later escape, but law can offer mechanisms that would help people design and implement flexible precommitments. Research suggests two potential lines for innovation. First, partitioning access to resources may constrain consumption in contexts from dieting to saving, even when the partitions can be unilaterally broken. Second, the chunkiness …
Legal Or Political Checks On Apex Criminality: An Essay On Constitutional Design, Aziz Z. Huq
Legal Or Political Checks On Apex Criminality: An Essay On Constitutional Design, Aziz Z. Huq
Public Law and Legal Theory Working Papers
How should constitutional designers address the problem of apex criminality, or criminal actions by those elected or appointed to high positions in a national government? I offer three general observations about this difficult question of constitutional design. First, it is not at all clear that a constitutional designer ought to expend effort on creating accountability mechanisms to address apex criminality. Second, if a designer does choose to address the question, she must opt between two highly imperfect options—a ‘legal’ mechanism embedded in a nonpartisan body such as a prosecutor’s office, or a ‘political’ mechanism, which runs through an elected body …
States And Localities Can Offset Federal Tax Law's Impact On Their Residents, Daniel J. Hemel
States And Localities Can Offset Federal Tax Law's Impact On Their Residents, Daniel J. Hemel
Public Law and Legal Theory Working Papers
No abstract provided.
The Dance Of Partisanship And Districting, Nicholas O. Stephanopoulos
The Dance Of Partisanship And Districting, Nicholas O. Stephanopoulos
Public Law and Legal Theory Working Papers
Academic studies of redistricting tend to be either doctrinal or empirical, but not both. As a result, the literature overlooks some of the most important aspects of the mapmaking process and its judicial supervision, like how they relate to the broader American political context. In this Article, I try to fill this gap. I first observe that the half-century in which federal courts have decided redistricting cases can be divided into two periods: one lasting from the 1960s to the 1980s, in which voters and politicians were both comparatively nonpartisan; and another reaching from the 1990s to the present day, …
Regulatory Bundling, Jennifer Nou, Edward H. Stiglitz
Regulatory Bundling, Jennifer Nou, Edward H. Stiglitz
Public Law and Legal Theory Working Papers
Regulatory bundling is the aggregation or disaggregation of legislative rules by administrative agencies. Agencies, in other words, can bundle what would otherwise be multiple rules into just one rulemaking. Conversely, they can split one rule into several. This observation parallels other recent work on how agencies can aggregate adjudications and enforcement actions but now focuses on legislative rules, the most consequential form of agency action. The topic is timely in light of a recent executive order directing agencies to repeal two regulations for every new one promulgated. Agencies now have a greater incentive to pack regulatory provisions together for every …
Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Jacob Strahilevitz
Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Jacob Strahilevitz
Public Law and Legal Theory Working Papers
Though personalization of law is often viewed as a new idea, pockets of criminal procedure already tolerate it. Many courts have held that Miranda warnings must be tailored when read to juveniles or people with limited English proficiency; a suspect’s age is necessarily part of the judicial calculus when determining whether the police’s questioning of her is a custodial interrogation; and some state courts consider a person’s demographic characteristics when deciding whether they have consented to a search. The question before us now is whether society should go further. Should the law of criminal procedure pay more attention to individual …