Inside or Outside the System?
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In a typical pattern in the literature on public law, the diagnostic sections of a paper draw upon political science, economics, or other disciplines to offer deeply pessimistic accounts of the motivations of relevant actors in the legal system. The prescriptive sections of the paper, however, then issue an optimistic proposal that the same actors should supply public-spirited solutions. Where the analyst makes inconsistent assumptions about the motivations of actors within the legal system, equivocating between external and internal perspectives, an inside/outside fallacy arises. We identify the fallacy, connect it to an economics literature on the “determinacy paradox,” and elicit its implications for the theory of public law.
For very helpful comments, conversations, and encouragement on this draft and earlier versions of this project, the author thanks Joel Alicea, Howard Anglin, Kristina Arriaga, Randy Barnett, William Baude, Rachel Bayefsky, Joseph Blocher, Samuel Bray, Christian Burset, Jud Campbell, Louis Capozzi, Piero Ríos Carrillo, Conor Casey, Nathan Chapman, Aimee Clesi, Nicholas Cole, Steve Collis, Caroline Mala Corbin, Katherine Mims Crocker, Marc DeGirolami, Michelle Dempsey, Alma Diamond, Hasan Dindjer, Richard Ekins, Timothy Endicott, David Enoch, Bridget Fahey, Richard Fallon, John Finnis, Frederick Gedicks, Nazila Ghanea, Sherif Girgis, Raphaël Grenier-Benoit, Simona Grossi, Jeremy Gunn, John Harrison, Michael Helfand, Richard Helmholz, Don Herzog, Steven Heyman, Kristin Hickman, Jessie Hill, Heidi Hurd, Michael Kang, Paul Kerry, Andrew Koppelman, Konrad Ksiazek, Genevieve Lakier, Lia Lawton, Douglas Laycock, Robert Leider, Tyler Lindley, Christopher Lund, Elinor Mason, Michael McConnell, Stefan McDaniel, Bradley Miller, Darrell Miller, Paul Miller, Robert Miller, Christina Mulligan, Jim Oleske, Filipa Paes, James Phillips, Richard Pildes, Jeffrey Pojanowski, Zachary Price, Haley Proctor, Eric Rassbach, Richard M. Re, Bradley Rebeiro, Veronica Rodriguez-Blanco, Zalman Rothschild, Angelo Ryu, Stephen Sachs, Josep Tirapu Sanuy, Micah Schwartzman, Amanda Shanor, Reva Siegel, Geoffrey Sigalet, Lawrence Solum, Anna Stelle, John Stinneford, Mark Storslee, Michael David Thomas, Rebecca Tushnet, Francisco Urbina, Pía Chible Villadangos, Eugene Volokh, Derek Webb, Grégoire Webber, Lael Weinberger, Andrew Willinger, John Witte, Kara Woodbury-Smith, Ilan Wurman, Paul Yowell, Mary Ziegler, the participants at the Women in Legal Philosophy Conference at Villanova Law School, the First Annual UChicago Constitutional Law Conference, the Oxford Public Law Discussion Group, the Oxford University Bonavero Institute of Human Rights Works-in-Progress session, Federalist Society Junior Scholar Panel at Association of American Law Schools, the Salmon P. Chase Colloquium, the Georgetown Law School Works-in-Progress session, the Minnesota Law School Works-in-Progress session, the Pepperdine Law School Nootbaar Fellows workshop, the Northwestern Law School Works-in-Progress session, the Northwestern Law School Public Law Colloquium, and the Stanford Law School Constitution Center Works-in-Progress workshop. For excellent research assistance, the author thanks Nat Deacon, Chris Ostertag, Jacob Feiser, Mathias Valenta, Anneliese Ostrom, and Athanasius Sirilla.
Professor Stephanie Hall Barclay proposes and defends a new theoretical model of constitutional rights. While virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights and generally hold out the judiciary as the primary guardian of these rights, this Article explains why the existing accounts of constitutional rights are either incoherent or incomplete. It proposes and defends an alternative model that is more consistent with democratic principles and the institutional competencies of the various branches of government.
Thank you to Tyler Ashman and Liam Haffey for providing helpful feedback and assistance on this Case Note.
The Constitution’s Double Jeopardy Clause allows successive criminal prosecutions for the same conduct so long as they are pursued by separate sovereigns (such as two different states). This Case Note examines Illinois law to argue that state statutes are a useful, though imperfect, means of addressing the dual sovereignty doctrine. It argues further that the details of statutory language are highly consequential to whether states can scale back dual sovereignty in practice.
He thanks Elizabeth Welsh, Liam Haffey, and the entire University of Chicago Law Review Online team for their support and feedback.
This Case Note summarizes the primary holdings surrounding Ninestar Corp, focusing on the resulting predicament for the FLETF. By revealing more information to regulated firms about its Entity List determination procedures, the FLETF could force firms to seek administrative remedy before they could access the courts, thereby retaining greater control over UFLPA enforcement; yet, in doing so, it may enable firms to circumvent Entity List designation. This Case Note ultimately concludes that forced labor enforcement regime is best served by greater transparency in the Entity List designation process.