Faculty Bibliography

Western European nations offer an alternative to strict bans on abortion that holds out the promise of protecting life—both fetal and maternal life—as much as possible. More important than the details of policies directly aimed at abortion access are Western European systems of social support for women before, during, and after pregnancy—a thick social safety net in which contraception is readily available, as is medical care during pregnancy and after delivery, with generous family leave policies and widespread availability of child care. And these policies are all set in a “culture of life” that extends beyond the abortion issue itself. These Western European policies emerged from bargains among political parties with distinctive ideologies and histories. However, the contours of U.S. party politics make it difficult to imagine how the Western European model could be implemented in the United States.

This Research Handbook deals with the politics of constitutional law around the world, using both comparative and political analysis, delivering global treatment of the politics of constitutional law across issues, regions and legal systems. Offering an innovative, critical approach to an array of key concepts and topics, this book will be a key resource for legal scholars and political science scholars. Students with interests in law and politics, constitutions, legal theory and public policy will also find this a beneficial companion.

The idea of judicial dialogue entered into scholarly discussion in the late twentieth century and is used in connection with different phenomena at the transnational and domestic levels. In the transnational context, it refers to exchanges among courts and judges that belong to different national and international legal regimes. In the domestic context, judicial dialogue refers to interaction between courts and other branches of government, particularly legislatures. Each phenomenon is associated with a form of politics. Transnational judicial dialogue occurs in a literal sense when judges communicate and network with each other, but it also occurs in a figurative sense when judges engage in comparative legal research and consider each other’s work. Either way, it can resemble a specialized form of international relations, in which courts seek to bolster their own standing by affiliating themselves with more prestigious peers, and to exercise soft power and influence over less prestigious peers. Transnational dialogue is often opaque or invisible to outsiders and usually lacks domestic political ramifications. In a handful of settings, however, judges who make conspicuous use of foreign law by explicitly citing it in high-profile or controversial opinions can expect to face normative criticism for doing so.Dialogue at the domestic level is associated with alternative forms of judicial review that give legislatures the power to override or avoid judicial rulings of unconstitutionality. Such institutional configurations are said to strike a balance between legislative and judicial supremacy, and to take the sting out of the charge that constitutional courts are inevitably ‘countermajoritarian.’ Scholarly use of the dialogue concept envisions a discursive form of constitutional politics that is differentiated from, and superior to, the usual politics surrounding judicial review. However, it is unclear whether such a distinctive and elevated species of politics can be achieved in practice. On the one hand, if ‘dialogue’ is defined in a thin fashion as including any back-and-forth on constitutional questions between legislatures and courts, the concept becomes so broad as to be indistinguishable from ordinary politics. On the other hand, if ‘dialogue’ is defined in a thick fashion as substantive exchange on the merits of constitutional questions, there may be no country capable of satisfying the definition. The case of Canada, often held up as the leading example of judicial dialogue, illustrates the severe definitional challenges surrounding the concept.

¿Cuál es el papel adecuado de los tribunales en un Estado de Derecho? ¿Pueden reemplazar o corregir las decisiones de las legislaturas, integradas por personas elegidas por el voto de las mayorías? ¿Deberían compartir con el Congreso la potestad de interpretar las leyes? Dicho de otro modo, ¿quién debería tener la última palabra en la traducción de la Constitución y las leyes a la vida cotidiana? En este libro de extraordinaria influencia, que renovó de raíz el pensamiento jurídico contemporáneo, Mark Tushnet despliega los efectos positivos de un papel más débil por parte del Poder Judicial, un sistema en el que los legisladores y los funcionarios del Poder Ejecutivo participen abiertamente en la interpretación constitucional. Postula, además, una concepción más fuerte de los derechos sociales y económicos, que deberían quedar bajo la custodia activa de todas las ramas de gobierno (en primer lugar, las ramas políticas). Fundador de la corriente de los estudios críticos del derecho en los años setenta, rara avis en el derecho norteamericano como jurista de izquierda que ocupa un lugar central en la discusión constitucional contemporánea, Tushnet pone a prueba su propuesta comparando el derecho de los Estados Unidos con los de Australia, Canadá o el Reino Unido, y demuestra que un control de constitucionalidad débil, como el que aplican esos países, puede ser compatible con el autogobierno democrático y la garantía del cumplimiento efectivo de los derechos para todas las personas. Mientras en la región se multiplican los conflictos entre poderes ejecutivos y judiciales y su solvencia y legitimidad para tomar decisiones, Siglo XXI acerca a los lectores de lengua castellana una obra clave para enriquecer y matizar esas discusiones, que en el fondo hablan de la fortaleza o debilidad de nuestras democracias.

This essay, to appear in a revised version in the Elgar Research Handbook on Constitutionalism and Legal Theory, deals with two broad varieties of constitutionalism: political versus legal/judicial constitutionalism, and procedural (liberal) and programmatic (substantive) constitutionalism. The varieties are continuums rather than sharply defined categories, of course. It examines the arguments political constitutionalists use to reject challenges that the rules of ruling must be entrenched against majoritarian revision and enforced as law by courts, and their defense of political constitutionalism as a sufficiently stable method of resolving disagreements about the rules of ruling. It then examines the arguments legal/judicial constitutionalists make for a two-fold proceduralization to deal with reasonable disagreements about substantive policy, the first into a constitution and the second into judicial resolution of disagreement through the use of modes of reasoning that do not reproduce the underlying disagreements (and notes the challenge that such reasoning actually reproduces such disagreements but obfuscates that fact). Merely procedural constitutions must deal with, among other things, the constitutional version of the liberal paradox of tolerance, which some do through doctrines of militant democracy. Substantive constitutions here are divided into three subcategories: identitarian (ascribing a specific vision of nationhood, often ethnonationalist, into the constitution); constitutions incorporating second- and later generation rights (economic and environmental); and transformative constitutions. The essay examines various difficulties associated with each of these forms.

At the most general descriptive level constitution-making processes can be understood as bargains struck among groups each of which sees advantages in establishing a (temporarily) stable governing order. This essay, a contribution to a handbook on the politics of constitutional law, seeks to identify some more granular processes. Section 1 describes three prominent approaches to theorizing about the politics of constitution-making Ackerman’s theory of “constitutional moments”; Elster’s identification of “upstream” and “downstream” constraints on constitution-making; and studies of post-conflict, post-crisis, and “imposed” constitution making, with a brief discussion of constitution-making in “normal” times. Section 3 offers a sequential account of the politics of constitution-making, beginning with the proposal stage, then turning to the selection of the process by which the constitution will be made before addressing some specific issues associated with constitution-making by constituent assemblies. A discussion of the politics of the drafting process follows, after which the essay considers the politics of adoption/ratification or rejection. The discussion concludes with what some have identified as the “afterlife” of constitutional processes that do not produce a new ratified constitution.

This Article offers a critique of one Progressive argument for the administrative state, that it would base policies on what disinterested scientific interests showed would best advance the public good and flexibly respond to rapidly changing technological, economic, and social conditions. The critique draws on recent scholarship in the field of Science and Technology Studies, which argues that what counts as a scientific fact is the product of complex social, political, and other processes. The critique is deployed in an analysis of the responses of the U.S. Centers for Disease Control and Food and Drug Administration to some important aspects of the COVID crisis in 2020. The COVID virus had characteristics that made it difficult to develop policies to limit its spread until a vaccine was available, and some of those characteristics went directly to the claim that the administrative state could respond flexibly to rapidly changing conditions. The relevant administrative agencies were bureaucracies with scientific staff members, though, and what those bureaucracies regard as "the science" was shaped in part by bureaucratic and political considerations, and the parts that were so shaped were important components of the overall policy response. Part II describes policy-relevant characteristics of knowledge about the COVID virus and explains why those characteristics made it quite difficult for more than a handful of democratic nations to adopt policies that would effectively limit its penetration of their populations. Part III begins with a short presentation of the aspects of the science and technology studies (STS) critique of claims about disinterested science that have some bearing on policy responses to the pandemic. It then provides an examination shaped by that critique of the structures of the Food and Drug Administration and the Centers for Disease Control, showing how those structural features contributed to policy failures. Part IV concludes by sketching how the STS critique might inform efforts to reconstruct--rather than deconstruct--the administrative state, proposing the creation of Citizen Advisory Panels in science-based agencies.

Governments are put in place to carry out policies. Effective governance means that they have the capacity to implement those policies. As Samuel Huntington observed, “[t]he most important political distinction among countries concerns not their form of government but their degree of government.” For our purposes, state capacity is the ability of a government-in-place to develop and implement policies that its leaders believe will improve national well-being. The capacity to govern includes having the required material resources, the personnel for whatever is necessary to deliver the policies to their beneficiaries, and a bureaucratic organization that enables high-level officials to implement policies. How does state capacity feature in constitutional adjudication? And how can courts contribute to effective governance? Of course, they can interpret constitutions and statutes to authorize government officials to use whatever capacity they have to implement their chosen policies.

When calls for regulating lies collide with free expression values

This Review Essay uses the publication of Martin Loughlin’s Against Constitutionalism and Roberto Gargarella’s The Law as a Conversation Among Equals as the occasion for reflections on the tension between contemporary constitutionalism and constitutional democracy, a tension both authors identify and analyze in detail. After laying out their concerns, the Review Essay constructs an argument for a different kind of constitutionalism, one that is predicated on deliberative interactions among the people, flexible, and respectful of fundamental rights. In that form of constitutionalism, structural arrangements and specifications of fundamental rights are always provisional, subject to revision after considered deliberation among the people. The Review Essay concludes that such arrangements deserve the honorific label “constitutionalist,” and addresses some arguments to the contrary.

Private law—the background legal rules of contract, property, and tort—determines legal entitlements to the material goods dealt with by constitutionally guaranteed economic and social rights. Courts have struggled to determine whether and how the constitution applies to private law. The jurisdiction of constitutional courts sometimes leads them to “develop” private law in light of the constitution. Once we recognize that many of the questions that have puzzled courts and commentators about the application of the constitution to private law actually involve puzzles about the constitution’s substance, most of the analytic difficulties are transformed. The questions that remain arise from specific institutional arrangements, and in particular from the distribution of law-declaring authority between constitutional and ordinary courts.

Secessionists typically have several goals. One is getting out from under rule by an oppressive “foreign” center, where the oppression takes the form of violations of what the secessionists and objective observers reasonably understand to be their basic rights. This paper, to be appear in a collection “Constitutional Law and Politics of Secession” edited by Antoni Abat i Ninet (Routledge), deals with secessionist movements in relatively prosperous regions that haven’t suffered from the effects of classical nineteenth century colonialism, whose residents aren’t in general grossly mistreated by the policies adopted by the larger nation of which they are part. The paper focuses on two goals other than relief from gross oppression. The first is policy autonomy, meaning the ability of the secessionist region/nation to determine for itself a wide range of policy goals without requiring the approval of the center/nation of which they were a part. The second is recognition in Charles Taylor’s sense, meaning the acknowledgement by the international community that the secessionist region/nation has a distinctive national identity (which is different from the formal idea of recognition in international public law). The paper is fundamentally Coasean. It rests on propositions about the bargaining power of the secessionist region/nation in a world in which modern technologies of multi-level governance are available. The most important of those technologies are asymmetrical federalism (within the nation in which the secessionist region is located) and networks of bilateral and multilateral treaties in which the newly independent secessionist nation and its “parent” both participate, along with older technologies such as confederation. With those technologies in hand, the parent nation and the secessionist region/nation will reach accommodations about both domestic and non-domestic policy that reflect their relative bargaining power. The Coasean point is that relative bargaining power needn’t (and probably doesn’t) change merely upon the achievement of independence by the secessionist nation.

This article uses Ernst Fraenkel’s concept of the “dual state” as the vehicle for examining the role of “lynch law” as a mode of governance of African Americans in the United States from 1865 to 1940 (roughly). It begins with a largely jurisprudential inquiry placing my interpretation of Ernst Fraenkel’s distinction between the normative state and the prerogative state in dialogue with a version of American Legal Realism, in which law consists entirely of “moves” such as permissible distinctions and analogies that are treated (sociologically) as acceptable by relevant professional communities. Seen through that lens the distinction between the normative state and the prerogative state thins out. The arbitrariness Fraenkel associates with the prerogative state infects the normative state and the prerogative state is pervaded by norms that aren’t mere simulacra of legal norms. The two kinds of state are different in degree rather than in kind—but differences in degree can matter. Part II uses the revised distinction in a preliminary examination of lynch law in the U.S. South. Lynch law was not an example of Fraenkel’s prerogative state; the norms enforced through lynch law might have been popular versions of norms drawn from the prerogative state. And yet “lynch law” was different not only in content from the rules of law formally applicable to all people in the United States but also in the lived experience of those subject to lynch law. Lynch law might not have been arbitrary in the sense that it had no knowable normative content, but, perhaps because the norms were popular rather than legislated or formal, it was substantially vaguer than the formal law and significantly less able to guide the choices made by those subject to it.

Modern constitutional theory deals almost exclusively with the mechanisms for controlling the exercise of public power. In particular, the focus of constitutional scholars lies in explaining and justifying how courts can effectively keep the exercise of public power within bounds. But there is little point in worrying about the excesses of government power when the government lacks the capacity to get things done in the first place. In this Article, we examine relations between the courts, constitutionalism, and state capacity other than through limiting state power. Through a series of case studies, we suggest how courts confront the problem of state building, and how the question of state capacity informs constitutional doctrine. Our studies consist of litigation over life-saving medication in Brazil, “engagement” remedies in South Africa, the problem of pretrial detention in India, and the validity of India’s recent biometric identification project. As we show, state capacity is a crucial variable in the development of constitutional doctrine—and while engaging with the issue of state capacity, courts often play a role in facilitating its expansion. The case studies identify a number of mechanisms that courts use to encourage capacity development: providing incentives to enhance capacity, guiding and directing the state to perform specific actions, compensating for weak capacity by absorbing the problem, and endorsing measures that purport to increase capacity. We then offer an expressly idealized model by which courts can negotiate capacity-related concerns. Courts can, in certain instances, respond to the problem of state capacity through weak-form, dialogic, experimentalist forms of review. The precise role that courts can and should play in this regard remains to be fully studied, but focusing on the question of state capacity allows us to better explain contemporary constitutional doctrine in several jurisdictions, and highlights the challenges involved in at once creating and limiting state power.

This essay offers my explication of what I understand to be the principle propositions that constitute American legal realism. “Explication,” because I do not intend to defend the propositions, and “my” because the essay is not an exegesis of the work of major legal realists but is instead my personal version of what I take to be those propositions. The core assertion is that a person seeking to understand what the law is in some jurisdiction must engage in an empirical inquiry into social facts. These facts include matters such as the organization of the legal profession, culturally prevalent ideologies about law, and more. American Legal Realism, that is, in my view is fundamentally a sociological account of law.

This essay discusses how several institutions might be designed to implement popular constitutionalism within a liberal constitutionalism frame. The institutions are (1) forms of direct popular legislation such as referendums, (2) imperative mandates or instructions to representatives that the representatives must follow, sanctioned by automatically removing a noncompliant representative from office, and (3) modern communications technologies used to elicit citizen views as an alternative to voting (or polling). As to referendums, it critiques arguments (1) that referendums can oversimplify complex policy options in ways that sometimes produce outcomes that are indefensible in principle, incoherent, and inconsistent with what the people would prefer after the kind of deliberation that occurs in representative assemblies, and (2) that referendums systematically, though not inevitably, threaten rights of minorities that liberal constitutionalism guarantees. As to imperative mandates, it argues that objections track those to referendums, and offers parallel responses. And as to modern communications technologies, it focuses on such concerns that they fail to take advantage of specialized knowledge, and argues that overestimate the degree to which specialists actually have specialized knowledge and underestimate the degree to which such knowledge is available within a population of ordinary people and observes that sometimes domains in which specialized knowledge really is required can be identified in advance and exempted from these mechanisms.

"Steven Shapin began a classic work with this sentence: "There was no such thing as the Scientific Revolution, and this is a book about it."1 This book’s theme might be put in similar terms. There was no Constitutional Revolution of 1937, and this is a book about it. As the book’s subtitle suggests, the Hughes Court from its inception in 1930 was in large measure a Progressive court, committed in a wide range of areas to the vision of active government associated with the Progressive movement in thought and politics. The Court was not dominated by a deep formalism, though most of the justices, liberals and conservatives alike, had their moments of formalism - and not merely for strategic reasons when controlling precedent forced formalism on them. At one time or another and cumulatively a great deal of the time, all of the justices incorporated ideas about good public policy in their interpretations of the Constitution and federal statutes"– Provided by publisher.

Recently the literature on free expression has turned to the question, should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.

Perhaps the wave of authoritarian populism has begun to recede. Rebuilding liberal constitutionalism in its aftermath now requires some attention, as Andrew Arato and András Sajó suggest. (This intervention addresses some but not all of the questions they raise.)

Power to the People proposes that some forms of populism are inconsistent with constitutionalism, while others aren’t. By providing a series of case studies, some organized by nation, others by topic, the book identifies these populist inconsistencies with constitutionalism-and, importantly, when and how they are not. Opening a dialogue for the possibility of a deeper, populist democracy, the book examines recent challenges to the idea that democracy is a good form of government by exploring possibilities for new institutions that can determine and implement a majority’s views without always threatening constitutionalism.

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations — of the courts’ own decisions — to Strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. My conclusion is that these allocation strategies reproduce within strong- and weakform systems the issues that arise on the level of constitutional design. Weak-form systems and allocation may seem to alleviate some difficultiesassociated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.

"Late in the evening of September 1 the U.S. Supreme Court issued an order that many critics have described as effectively overruling Roe v. Wade, the 1973 decision holding that the U.S. Constitution protected a woman’s right to choose to have an abortion. That description, though technically inaccurate, does capture something important about the Court’s order: It made abortions unavailable as a practical matter for many women in Texas who would have had access to abortion services had the Court issued a different order."

"Chapter Nine of South Africa’s Constitution is titled, "State Institutions Protecting Constitutional Democracy." Its list of institutions that "strengthen constitutional democracy" includes the Public Prosecutor, the Human Rights Commission, the Auditor-General, and the Electoral Commission. Seen in the context of the Constitution’s written text, these institutions form a branch on a par with Parliament and the President. Textual placement may not be important in itself. The authors of the South African Constitution were on to something important, though. They saw that the traditional Montesqueian enumeration of three and only three branches of government no longer identified the complete set of desiderata for institutional design. Dissatisfaction with the Montesquiean enumeration was apparent as well in Roberto Mangabeira Unger’s False Necessity, published in 1987. That enumeration, Unger wrote, was "dangerous" because it "generates a stifling and perverse institutional logic...." The solution for Unger lay in multiplying the number of branches. He offered several examples: a branch "especially charged with enlarging access to the means of communication, information, and expertise," and a branch - labeled the "destabilization branch" - designed "to give every transformative practice a chance.""– Provided by publisher.

This brief essay, to appear in the Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good.

To understand contemporary arguments about deconstructing and reconstructing the modern administrative state, we have to understand where that state came from, and what its futures might be. This introductory essay describes the traditional account of the modern administrative state’s origins in the Progressive era and more recent revisionist accounts that give it a longer history. The competing accounts have different implications for our thinking about the administrative state’s constitutional status, the former raising some questions about constitutionality, the latter alleviating such concerns. This introduction then draws upon the essays in this issue to describe three options for the future. Deconstructing the administrative state without adopting a program of across-the-board deregulation would entail more regulation by the legislature itself and would insist that Congress give clear instructions to administrative agencies. Tweaking would modify existing doctrine around the edges without making large changes. Reconstruction might involve adopting ever more flexible modes of regulation, including direct citizen participation in making and enforcing regulation.

Something akin to what social psychologists call the “fundamental attribution error” underlies many discussions of the responsibility of politicians – from Donald Trump to Jacinda Ardern – or the bad or good outcomes the nations they led had with the COVID-19 pandemic. Observers saw what the leaders did, and saw the outcomes. The fundamental attribution error is a tendency to explain the outcome more by pointing to what the leader did than to the context in which she acted. This Essay argues that we have to understand social events as the interaction between human agency and the constraints under which people act. The widespread governance failures in responding to the coronavirus pandemic tend to generate accounts that overemphasize agency and underemphasize constraint. The very scope of the failures – that only a handful of governance mechanisms around the world generated policies that did a decent job of keeping COVID-19 under control – suggests that we should look more closely at the constraints under which policy-makers operated.This Essay uses the distinction between agency and constraint as a tool for helping us think about the policy responses that were available and likely to be used in early 2020, when the “novel” coronavirus came on the international scene. The bottom line is this: given the context within which policy-makers acted (the constraints they faced) as the crisis developed, the pandemic was quite likely to be a human catastrophe. It’s not that nothing could be done to stop it, or even that nothing could be done to make it “merely” a disaster instead of a catastrophe. And it’s not that no one came up with – and sometimes implemented – policies that helped limit the disaster’s scope. The constraints under which policy-makers operated, though, meant that the chances of really successful outcomes were quite low – a suggestion consistent with the fact that outcomes around the world were basically pretty bad.The Essay proceeds by first identifying major features of the context as of early 2020 – the constraints and context for policy-making. Part II then describes what we know now, or have strong reason to believe, were the policies that could have done the most to minimize the virus’s effects on life, health, and economies. Part III examines the choices that were actually made, focusing, for reasons to be discussed, on nations with generally democratic systems of governance. A brief Conclusion returns to the fundamental attribution error: context and constraint probably mattered more than agency in generating the bad outcomes around the world.

The article focuses on U.S. Supreme Court cases including Korematsu v. United States and Trump v. Hawaii on racism in the U.S. and travel restrictions of Japanese Americans and Muslims. Topics include saboteurs and terrorists posed threats of uncertain degrees to national security, former U.S. President Franklin D. Roosevelt’s decision to ban travel, and the role of men and women in a government of laws.

Introduction: Some Groundwork Departmentalist constitutional theory asserts that members of each branch have the authority to use their own understandings of the Constitution when they act within their prescribed domain.1 Specifically, departmentalists claim that neither the President nor members of Congress are required to accept the interpretations of the Constitution offered by the courts, either in evaluating possible courses of action beforehand or bowing to a judicial decision after the event as a matter of principle.2 Sometimes departmentalists confine their claims to constitutional interpretation of provisions about each department’s scope of authority.3 So, for example, a departmentalist president might claim that Article II gives her the power to remove at will any principal officer of the government from office even though Congress has purported to limit the removal power in ways that seem consistent with Supreme Court precedent.4 Individual rights cut across all three branches.5 Assume that Congress is exercising one of its enumerated powers. For present purposes, I mean by "legal" rights those that can be enforced in court.7 That a right is associated with a constitutional provision means (a) that it is not something the courts would find required by the Constitution itself,8 (b) that it advances the values underlying the judicially enforced right, and (c) that the associated right falls within a range of reasonable interpretation of some constitutional provision even though the courts have adopted a different interpretation.9 With the notions of "legal rights" "associated with" constitutional rights in hand, what can be said about the President and individual rights? Section B then turns to the case where the President and her appointees agree with the courts about the content of an individual right.13 Administrative constitutionalism in this mode means that executive officials act within their jurisdiction to protect the legal rights the courts would recognize.14 It retrieves an argument made decades ago by Bernard Meltzer, that a world with more remedies for the same rights violations might not be better-from a rights-protective point of view-than a world with fewer such remedies.15 A brief Conclusion summarizes the argument.16 I. The President’s Discretionary Powers One standard example offered in defense of departmentalism is President Thomas Jefferson’s decision to pardon those who had been convicted of violating the Federalist-inspired Sedition Act of1798.17 Jefferson did so because he believed that the Sedition Act was unconstitutional on federalism and freedom-of-expression grounds.18 And he did so in the face of lower court decisions upholding the statute against constitutional challenges.19 Another standard example is President Andrew Jackson’s veto of a bill rechartering the Bank of the United States.20 Jackson’s veto invoked policy and constitutional (federalism) objections to the rechartering.21 Notably, the Supreme Court here had rejected the constitutional challenges.22 Finally, presidents can recommend that Congress enact a statute providing more protection to individual privacy from government surveillance than the Supreme Court has or would hold constitutionally guaranteed.23 These three examples involve exercises of discretionary presidential powers.24 The key point about discretionary decisions is that before, and sometimes even after, they are made they necessarily create no legal rights.25 No one convicted of violating the Sedition Act had a right to a pardon-even in the form of a right to have a President who believes the Act unconstitutional issue a pardon.26 Or consider United States v. Lovettvphantom1 There Congress had directed the President to withhold pay from three named government officials.28 President Franklin Roosevelt signed the bill, stating, "I have been forced to yield, to avoid delaying our conduct of the war. Constitutional rights either trump other non-rights social values, in Dworkin’s terms, or compete against those other values.34 In the first case the contours of the constitutional right are defined with reference to those other values.35 So, for example, the right to free expression trumps the values of social stability, but the right does not encompass (in the United States) utterances that (to oversimplify) are intended to and are likely to incite imminent lawless action.36 In the second case, the values associated with the right are balanced against other social values such as stability or, in the usual example, the ability of people to use streets and parks for their ordinary purposes.37 In either version, a President’s discretionary action that takes into account the values associated with a constitutional right might bump up against other social values.38 In the usual case this simply produces an ordinary policy judgment that, in the policymaker’s view (here, the President’s), public policy is better advanced by the decisionmaker’s preferred course of action.39 Sometimes, though, the other social values are also associated with individual rights.

Originalism in Austria means examining the historical materials associated with the adoption of the Austrian constitution; originalism in India means examining the historical materials associated with the adoption of the Indian constitution. A striking example is provided in the South African constitution. Many nations limit the time that a person can be held after arrest but before presentation to a judicial officer. Often these provisions state that the person must appear before a judge within a reasonable period. Scholars interested in the constitutional and nature see this as either a crystallization of inchoate ideas rattling around in other constitutional systems, or as foreshadowing a coming general recognition of ecological rights. Interpretations of identical substantive provisions also vary, though the case is complicated by questions of translation and contextual understanding. National political and social cultures determine the weight given to at least some constitutional values.

Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This Essay challenges that commentary. We agree that some variants of populism are incompatible with modern liberal constitutionalism but argue that the tension between populism as such and constitutionalism as such, though real, is significantly narrower than much commentary suggests. We begin in Section II by offering “barebones” definitions of populism and constitutionalism so that we can tease out precisely what the tension between them is. Section III turns to case studies of challenges to judicial independence, of the use of referendums, and of innovative methods of determining the public’s views. As with our discussion of defining populism and constitutionalism, here we attempt to identify whether (or the degree to which) the case studies demonstrate a tension between populism and constitutionalism. Our conclusion is that sometimes we can see such a tension and sometimes we cannot, and that the analysis of specific populisms and their policies in relation to constitutionalism must be highly sensitive to context. Section IV applies the argument to two developments in the United Kingdom: the Brexit referendum and the attempt by Boris Johnson to prorogue Parliament and the ensuing decision by the UK Supreme Court finding the prorogation unlawful. Here our conclusion once again that analysis of populism’s relation to constitutionalism must be sensitive to context: The referendum was flawed but not in ways that cast a bad light on populism as such, and the prorogation, while perhaps unlawful, was not clearly anti-constitutional. Overall we argue against generalized claims about populism as such and constitutionalism as such. There are many populisms and at least a few constitutionalisms, and scholars and observers should direct their attention to the questions posed by specific actions taken by individual populist governments. Sometimes populist governments will act in anti-constitutional ways, and sometimes they will not. We believe that this conclusion is appropriately deflationary.

In 1969-70 or thereabouts several Yale Law School students set up a “commune” in the courtyard between what were then residential halls. At roughly the same time David Trubek and Rick Abel were holding a reading group on law and development with a heavy dose of social theory, a harbinger of what became critical legal studies. The two events can be taken as representative of alternative paths to social transformation – roughly, the cultural path and the path to change through self-consciously directed political action. In this short paper, originally prepared for a conference on the intellectual history of critical legal studies at Princeton University in February 2020, I read two works as dialogues about those paths, Tom Stoppard’s play “Rock ‘n’ Roll,” which looks at Czechoslovakia from 1968 through 1989 – from the Prague Spring through the Soviet occupation to the collapse of the Soviet empire – and “Roll Over Beethoven,” a discussion between “Peter Gabel” and “Duncan Kennedy” about some controversies in the early years of critical legal studies.

Constitutional theory dating to Montesquieu identified three branches of government, each with a specific function: the legislature enacted general rules, the executive enforced the rules, and the judiciary resolved disputes about the rules’ meaning and application. Every government had to have these branches in some form; that is, the branches were necessary elements in a governance structure. In addition, the branches were exhaustive: that is, taken together they did everything a government could do.

This chapter explores the problem of incorporating music and art into a theory of freedom of speech without also including a far wider range of human activities. Constitution writers and scholars of free expression agree that music and art are covered by principles of free expression. Exactly why they are is a bit unclear, but the unclarity has few practical implications. Examination of the coverage of music and art, though, may reveal something about free expression theory. It may show that that theory deals with subjects sharing a family resemblance rather than resting upon ‘foundations’. If so, the examination has significant theoretical implications—and almost no practical ones. Democratic governments rarely attempt to coercively regulate art and music.

"Drawing upon the experience of faculty from across the country, Integrating Doctrine and Diversity is a collection of essays with practical advice, written by faculty for faculty, on specific ways to integrate diversity, equity and inclusion into the law school curriculum. Chapters will focus on subjects traditionally taught in the first-year curriculum (Civil Procedure, Constitutional Law, Contracts, Legal Writing, Legal Research, Property, Torts) and each chapter will also include a short annotated bibliography curated by a law librarian. With submissions from over 40 scholars, the collection is the first of its kind to offer reflections, advice and specific instruction on how to integrate issues of diversity and inclusions into first-year doctrinal courses"– Provided by the publisher

What role do courts play in peace processes? Relying on case studies of South Africa and Colombia, we identify two functions. First, by invalidating some peripheral provisions constitutional courts can enhance the legitimacy of those agreements by adding the imprimatur of legalism to the political support the agreements already have. Second, the international law of impunity can be an obstacle to reaching a peace agreement, but domestic courts can weaken that impediment by deferring a confrontation with that law by creative interpretation of both the peace agreement and international law, thereby postponing to the indefinite future any actual confrontation between the agreement and international law.

"This volume of NOMOS--the 63rd in the series--emerged from papers and commentaries given at the annual meeting of the American Society for Political and Legal Philosophy (ASPLP). This meeting marked the first in the Society's modern history not linked to an annual conference of one of the three contributing disciplines--philosophy, political science, and law--and took place at the new institutional home for ASPLP, Boston University School of Law, on September 28, 2018. Our topic, "Democratic Failure," was selected by the Society's membership"--p. ix.

Recently the literature on free expression has turned to the question, Should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay examines and critiques Professor Tim Wu’s prominent version of the argument that the development of NIT should lead us to rethink the law of free expression. After laying out the paradigm underlying free expression law, that speech causes harm, the Essay examines two aspects of the argument that the more speech, the more harm, which might lead us to seek a new set of rules that jointly optimize speech and harm. One is that NIT should lead us to alter substantive First Amendment law because NIT lead us to reconsider the general balance we have struck among the values promoted by free expression. Section IV deals with that argument. The second is that NIT affect the mechanisms by which specific categories of speech cause specific harms. That argument calls for a more granular approach. To implement that approach the Essay looks at the mechanisms by which more speech might render the “rules in place” no longer socially optimal. It examines false statements that injure reputation (libel), expression that induces unlawful action (the subject of the traditional law of sedition); sexually explicit expression (obscenity and pornography); false statements that inflict no material harm (“fake news”); and threats (cyberstalking). A final section turns to arguments about the platforms used by NIT – Twitter, Facebook, and the like. (1) The platforms should be subject to the same limitations on speech regulation that apply to the government. These arguments sound in the state-action doctrine rather than in the First Amendment, and I have relatively little to say about them. (2) The platforms can be regulated through the application of antitrust or fiduciary law without violating the First Amendment. I discuss existing First Amendment doctrine about the application of “general” laws to the media and examine some issues that might arise in connection with tinkering with antitrust or fiduciary law as the vehicle for platform regulation. (3) The platforms should be held liable for the utterances they disseminate, holding constant the substantive rules of libel, threats, and the like. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.

The 2020 Annual Supplement, like prior Supplements, includes excerpts from recent scholarship and from important new decisions of the Supreme Court. This was a most interesting Term, and several of the new decisions that are covered in the Annual Supplement are listed below. New to the 2020 supplement: Trump v. Vance Espinoza v. Montana June Medical Services v. Russo Seila Law v. CFPB Our Lady of Guadalupe School v. Morissey-Berra Chiafalo v. Washington Little Sisters of the Poor v. Pennsylvania

This Essay is a personal reflection on the state of scholarship in the field of comparative constitutional law. I draw parallels between the development of and reaction to “critical perspectives” on domestic US constitutional law in the 1970s and 1980s and the development and reaction to similar perspectives on comparative constitutional law today. I argue that the parallels have similar political roots, in concern that critical perspectives undermine the ability of constitutional law, whether domestic or comparative, to resist conservative and anti-liberal tendencies. I conclude with some speculations about the source of the political commitments by scholars of comparative constitutional law, and in particular about the way the field’s overall cosmopolitanism affects scholarship on anti-cosmopolitan populisms.