Constitutions have long been understood to empower courts. We argue, however, that constitutions can also be used to de-judicialize politics. We focus on the de-judicialization strategy of adding detailed provisions to U.S. state constitutions, and demonstrate that it has been employed throughout U.S. history and is still in use today.   

This Essay draws from on-the-ground interviews and procedural-justice theory to analyze judging practices in debt-collection courts. Current practices undermine courts’ fairness and legitimacy. This Essay argues that courts must prioritize procedural justice by adopting judging practices that consider unrepresented litigants’ circumstances and require a more active judicial role.  

In Separation-of-Powers Avoidance, Z. Payvand Ahdout reconceptualizes a bevy of separation-of-powers precedents as judicial avoidance. But one of the cases she cites as a foil—Seila Law LLC v. Consumer Financial Protection Bureau—is a curious fit. The removal cases are tough to categorize in the separation-of-powers corpus.  

This Essay highlights the continued invisibility of cyber gender abuse. The Supreme Court in Counterman v. Colorado regrettably exacerbated this problem. Now is time to reignite the discussion around cyber gender abuse, recognize the profound harms it causes, and pursue a reform agenda to combat it.

Why does the International Monetary Fund (IMF) exit its lending relationships before member states have resolved their financial crises? It is particularly surprising given that the IMF often resumes its lending shortly after its withdrawal. We argue that IMF withdrawals are conditioned by global contagion risk. The tension between the IMF's mandate of global financial stability and its limited financial

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments.

The ECRA is a major step toward preventing future election subversion. But since states and localities administer elections, its success depends on state compliance. This Essay details how states should update their election codes ahead of the 2024 elections to guarantee that the new law lives up to its promise.

This Essay explores the people’s right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.

Twenty years ago, in Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick by correcting Bowers’s mistaken historical assertions. History, as they say, repeats itself: When a future Court reconsiders Dobbs v. Jackson Women’s Health Organization, it will find an opinion whose historical errors dwarf those in Bowers.  

In Dobbs, the Court reversed Roe, interpreting the Fourteenth Amendment by counting states that banned abortion in 1868, an interpretive method popularized in the defense of segregation. This Essay traces the method’s spread, evolution, and justifications through decades of debate about originalism, history and tradition, and “levels of generality.”

By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.  

Distributive politics—or pork barreling—is prevalent across many political systems. It aims to influence the vote by directing discretionary spending to constituencies and/or groups of voters that are important for their re-election. We term this the objective dimension to pork barreling. However, we argue that for pork barreling to deliver rewards, voters must also be aware that they are gaining a

The article provides a resource-based perspective on the polymorphic regulatory welfare state. It shows regulatory and fiscal tools applied in the UK social security sector place demands on claimants' resources (i.e., possessions, labor and data) and simultaneously alter behavior in relation to these resources. The analysis exposes an operation that generates new and increasing resource pressures for

Liberation theologians advocate for lay interpretation of the Bible in base ecclesial communities. Proponents of democratic constitutionalism should adapt the base-ecclesial-community model to the constitutional context. By participating in base constitutional communities, Americans can play a direct role in constitutional interpretation, thereby improving the democratic legitimacy of constitutional

Regulators who aim to reduce administrative burdens often promote trust-based policy instruments, such as legal affidavits or honesty pledges, as substitutes to traditional bureaucratic procedures. However, little is known on how the general public view such instruments, and whether people would actually comply with them, and under what circumstances. Using a series of experimental vignettes, we examine

At the Founding, commanders in chief (CINCs) enjoyed neither sole nor supreme military authority, each military branch having many chief commanders. Thus, most presidential authority over the military stemmed from the rest of Article II, not the CINC Clause. Consequently, Congress enjoys sweeping authority over the military and its operations.    

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court announced a novel historical-analogical approach to constitutional decisionmaking. The Court sought to constrain judicial discretion, but Bruen’s originalism-by-analogy has enabled judicial subjectivity, obfuscation, and unpredictability. This Article describes Bruen’s methodology, identifies its challenges, and offers solutions.

Speech can catalyze reform, particularly for marginalized speakers. Yet, criminal law regularly curtails speech rights by regulating access to spaces where speech occurs. This Feature (1) argues that, sometimes, presence in such spaces is the message and (2) proposes a First Amendment defense grounded in communities’ own values.  

Liberation theologians advocate for lay interpretation of the Bible in base ecclesial communities. Proponents of democratic constitutionalism should adapt the base-ecclesial-community model to the constitutional context. By participating in base constitutional communities, Americans can play a direct role in constitutional interpretation, thereby improving the democratic legitimacy of constitutional

This Note traces the separation of powers in U.S. antimonopoly law—a division of authority that arose after the National Industrial Recovery Act failed in 1935 and that the Biden Administration is attempting to reconfigure today. To succeed, a revived antimonopoly presidency must incorporate the lessons of the NIRA’s history.

Mass-tort cases have grown in scale and created escalating resource demands. Enter opaque capital: aggressive financiers who offer attorneys and plaintiffs access to capital. The prospect of leveling the playing field is alluring. But these financiers will never be passive partners. Opaque capital is moving into mass-tort financing to dictate outcomes.  

Asset recovery is a fundamental principle of anti-corruption law, without which the financial damage from corruption cannot be repaired. Yet recovering assets is notoriously difficult and time-consuming, and the United Nations Convention Against Corruption provides little technical or institutional support to facilitate such returns. To remedy this, we propose the creation of a transnational asset

International law prohibits states from intervening in the internal and external affairs of other states, but only if the method of intervention is coercive. This Article argues that coercion can be understood in two different ways or models. First, as coercion-as-extortion, a demand coupled with a threat of harm or the infliction of harm, done to extract some kind of concession from the victim state—in

There has long been a perceived tension between abolition and prison-conditions litigation. This piece offers a path forward for such litigation that is consistent with abolitionist goals. Drawing from experience with Texas state prisons, the piece proposes a framework for litigating prison understaffing that advances the project of abolition.   

‘Mainstreaming’ climate change by embedding climate change considerations in government policies, processes, and operations can bolster the realization of climate mitigation and adaptation goals and reduce risks of counter-productive actions. Some climate laws around the world now contain explicit mainstreaming duties, in parallel with emissions reduction targets and adaptation planning requirements

Modern welfare states struggle with fragmented policies and siloed governments, as well as with the need to deal with wicked problems. We argue that addressing such problems from the perspective of central government can be facilitated by notions of joined-up government that, combined with vertical aspects of modern governance, provide a basis for analysis. To embark upon such challenges, we examine

Law plays an important role in reshaping and enforcing governance efforts in radical shifts and can function as a catalyst for transitioning governance towards sustainability. This article assesses the capacity of law to facilitate decarbonization as a radical societal shift. It argues that decarbonization demands fundamental and systemic restructuring in law and legal thinking. This should also be

Throughout the past decades, the EU's agency landscape has continuously expanded in size and scope. In this article, we address the lack of longitudinal data on EU agencies' formal independence. We introduce a newly revised index to measure the formal independence of EU agencies from other EU institutions over time. Applying a rules-as-data approach we coded 206 regulations and amendments to develop

This paper contributes to ongoing scholarly debates on the merits and limitations of computational legal text analysis by reflecting on the results of a research project documenting exceptional COVID-19 management measures in Europe. The variety of exceptional measures adopted in countries characterized by different legal systems and natural languages, as well as the rapid evolution of such measures

Blockchain is employed as a technology holding a solutionist promise, while at the same time, it is hard for the promissory blockchain applications to become realized. Not only is the blockchain protocol itself not foolproof, but when we move from “blockchain in general” to “blockchain in particular,” we see that new governance structures and ways of collaborating need to be developed to make blockchain

The national quality framework (NQF) has been implemented to improve the safety and quality of alcohol and other drug (AOD) treatment and provide a nationally consistent approach to treatment quality in Australia. At the same time, concerns have been raised that, in the absence of appropriate regulatory structures to support the NQF, the quality and safety of AOD treatment services cannot be guaranteed

Scholarly evidence of transparency's beneficial effects on trust and perceptions of corruption remains debated and confined to the study of public administration. We contribute to this debate by extending the study of its effects to transparency legislation concerning members of parliament (MPs), political parties, and business interest groups. In an online experiment conducted in Ireland with 1373

This article studies eight cities in four countries in the southern African region (Namibia, Zimbabwe, South Africa, and Botswana) to explore whether and how local governing authority has been channelled towards local climate-resilient development. The authors undertook a desk-based identification and review of available primary and secondary legal sources and normative documents while also drawing

Practices of stakeholder engagement vary widely across voluntary sustainability standard setters. This study examines how the sponsorship structure of standard setters affects the diversity of stakeholders included in consultations and the influence of stakeholder input on standards. I compare six sustainability standard setters through an original dataset of 7945 stakeholder comments submitted during

Crime creates demand for insurance but supplying insurance may promote crime. We examine five case studies of insured crimes (auto theft, art theft, kidnap and hijack for ransom, ransomware, and payment card fraud) and find a co-evolutionary process through which insurers engage with insureds, governments, and legal and extralegal third parties to mitigate losses, particularly when criminal innovations

The dramatic rise of remote work threatens the traditional source of urban growth—the unique ability of dense cities to provide a setting in which firms and employees share productive resources, match needs with skills, and transmit knowledge at low cost. These “agglomeration benefits” have induced cities to pursue clusters of related firms that have served as the basis for local economic development

What explains the levels and diversity of stakeholder participation in public commenting on bureaucratic policymaking? We examine a novel dataset on a stakeholder engagement mechanism recently introduced by the European Commission containing information about 1258 events organized between 2016 and 2019. We highlight the importance of administrative acts' characteristics and acknowledge the role of

Private ‘bottom-up’ enforcement has been central to the efforts of the European Union (EU) to promote effective compliance with its ambitious environmental laws. This approach is strengthened by the EU's implementation of the Aarhus Convention, which aims to democratize environmental enforcement by conferring citizens and environmental non-governmental organizations (ENGOs) with legal rights of access

OBJECTIVE Risk assessment is essential to effective correctional practice. For individuals with contact sexual offenses, many risk tools are available. There are fewer options, however, for individuals whose sexual offending exclusively involves child sexual exploitation materials (CSEM; legally referred to in Canada and the United States as child pornography). HYPOTHESES The present study examined

Corporate governance is on the verge of entering a new stage. After the managerialism that dominated the view of the corporation into the 1970s and the shareholderism that supplanted it, we are witnessing the emergence of a new paradigm: corporate governance welfarism. Welfarism rejects the faith that market forces will promote general welfare and lacks confidence in the government’s ability to set

Regulatory and sociological resistance to new market-driven technologies, particularly to those that rely on collection and analysis of personal data, is prevalent even in cases where the technology creates large social value and saves lives. This article is a case study of such tragic technology resistance, focusing on tracking devices in cars which allow auto insurers to monitor how policyholders

Accounts of the post-Lateran IV period tend to emphasize the different procedural paths taken by English courts, which adopted jury trial for felony cases, and continental European courts, which turned toward inquisitorial methods and a greater reliance on confession. This article argues that the fact-finding strategies of the two systems had more in common than may appear at first glance due, in part

Litigants settle in the shadow of the law, but they behave in the shadow of the settlement outcome. Disparities in bargaining power drive a wedge between the shadow of the settlement and the shadow of the law. Broad literature has recognized various problems that stem from this discrepancy, from suboptimal deterrence to distributive concerns. We offer a new perspective to address these concerns—regulating

In its 20 years of operation, the Carbon Disclosure Project (CDP) has been enormously successful as a private governor of corporate climate risk disclosure. Despite an influx of potentially competitive government-led disclosure initiatives and interventions, the use of CDP's platform has nonetheless accelerated. To explain this outcome, we argue that public interventions augment the value of private

OBJECTIVE We explored whether an educational forensic science informational (FSI) video either alone or with specialized jury instructions would assist mock jurors in evaluating forensic expert testimony. HYPOTHESES We predicted that the FSI video would help participants distinguish between low-quality and high-quality testimony, evidenced by lower ratings of the testimony and the expert when the testimonial

We study the progress of women’s representation and achievement in law schools. To do this, we assemble a new dataset on the number of women and men students, faculty, and deans at all ABA-approved U.S. law schools from 1948 to the present. These data enable us to study many unexplored features of women’s progress in law schools for the first time, including the process by which women initially gained

Machine learning algorithms are increasingly able to predict what goods and services particular people will buy, and at what price. It is possible to imagine a situation in which relatively uniform, or coarsely set, prices and product characteristics are replaced by far more in the way of individualization. Companies might, for example, offer people shirts and shoes that are particularly suited to

This article takes an actor-centered and bottom-up perspective to analyze how private companies shape public responses to migration in Europe. It builds on ethnographic research with top managers and civil servants involved in visa policy, asylum reception, and immigration detention. Drawing on organizational theories about decisions and change, I analyze empirical evidence to put forward processes

Over the last decade, there has been increased interest in understanding the design (i.e., content) of regulation as a basis for studying regulation formation, implementation, and outcomes. Within this line of research, scholars have been particularly interested in investigating regulatory dynamics relating to features and patterns of regulatory text and have engaged a variety of methodological approaches

OBJECTIVE The risk of mistaken identification for innocent suspects in lineups can be estimated by correcting the overall error rate by the number of people in the lineup. We compared this nominal size correction to a new effective size correction, which adjusts the error rate for the number of plausible lineup members. HYPOTHESES We hypothesized that (a) increasing lineup bias would increase misidentifications

Fines and other financial sanctions are frequently imposed by criminal justice systems around the world. Yet they also raise grave concerns about economic discrimination. Unless they are perfectly scaled to defendants’ financial circumstances, they will penalize poor persons far more than rich ones—and poor defendants’ inability to pay can lead to further penalties like imprisonment or additional financial

Dear Editors in Chief:The recent uprising for racial justice marked a pivotal shift in national and global debates on race. One enduring legacy is that the language we use to speak, think, and label people is consequential. Most style guides that previously called for lowercasing Black altered their positions. This letter to the editors urges the American Journal of International Law (AJIL) to join

The international investment regime is in flux. The mainstream practice of investment law and arbitration works on the basis of the regime's foundations in contract and property law. However, critical scholarship in the field has unearthed the coloniality of power that permeates both the practice of international investment law and the current reform exercise led by the United Nations Commission on

Arnoltz, J. (2023) The embedded flexibility of Nordic labor market models under pressure from EU-induced dualization—The case of posted work in Denmark and Sweden. Regulation & Governance, 17, 372–388. The article listed above, intended for publication in the Special Issue,”Grand challenges and the Nordic model: regulatory responses and outcomes Symposium for Regulation & Governance”, volume 17, Issue

How do ultra-religious schools respond to state regulations that conflict with deep-rooted cultural norms? This study investigates this question in the context of Haredi boys schools' decisions regarding Israel's core-curriculum regulations. It draws on a first-of-its-kind dataset of interviews and school data collected from a representative sample of 82 principals and teachers in schools serving 18

The “revolving door” between those at the top of public and private organizations has given rise to questions about the “pull” and “push” factors influencing public servants' switching into lucrative posts with companies they previously regulated. In this study, we investigate the departmental attributes associated with the movement of senior British civil servants into potentially controversial corporate

This article addresses a key political question regarding the relationship between states and their citizens: how harsh are judicial systems in their punishment of those who deviate from the law? Punitiveness is a fraught concept in the existing literature and robust measurement methods maximizing conceptual complexity are lacking. Here I develop a functional approach to punitiveness through a revised

Abstract not available

Federal judges are not mere arbiters of the separation of powers. Whenever they adjudicate cases, judicial power is implicated. This Article documents how this phenomenon impacts doctrine concerning the structural constitution and contends that we ought to be wary when this doctrine travels outside the courtroom.

This Article argues that the sociological legitimacy of judicial institutions in federal systems rests on both integrity and autochthony. Through theoretical and comparative inquiry, we explore the ways in which initial federal constitutional design, as well as ongoing legislative and judicial management, construct and reconstruct the integrity-autochthony balance.