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Full-Text Articles in Law
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 …
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 …
Terrorism And Democratic Recession, Aziz Huq
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
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 …
Liberal Constitutionalism And Economic Inequality, Rosalind Dixon, Julie Suk
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.
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 …
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 …
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: …
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 …
The Coming Demise Of Liberal Constitutionalism?, Tom Ginsburg, Aziz Huq, Mila Versteeg
The Coming Demise Of Liberal Constitutionalism?, Tom Ginsburg, Aziz Huq, Mila Versteeg
University of Chicago Law Review
No abstract provided.
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.
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.
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.
Partisan Balance With Bite, Daniel Hemel, Brian D. Feinstein
Partisan Balance With Bite, Daniel Hemel, Brian D. Feinstein
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.
The Myth Of Trade Usages: A Talk, Lisa Bernstein
The Case Against Passive Shareholder Voting, Dorothy Shapiro Lund
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
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
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
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
A Not Quite Contemporary View Of Privacy, Richard A. Epstein
Articles
No abstract provided.
Separation Of Powers Metatheory, Aziz Huq