Constitutional Law

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Article
Volume 89.1
Remembering: The Constitution and Federally Funded Apartheid
Joy Milligan
Professor, the University of Virginia School of Law.

For helpful feedback, I thank Abhay Aneja, Darby Aono, Abbye Atkinson, Emily Bruce, Guy-Uriel Charles, Erwin Chemerinsky, Gabriel Chin, David Engstrom, Jonathan Glater, Michele Gilman, Becca Goldstein, Jon Gould, Kristen Holmquist, Olatunde Johnson, Daryl Levinson, Melissa Murray, Saira Mohamed, Tejas Narechania, Manisha Padi, Michael Pinard, Richard Primus, Bertrall Ross, Erik Stallman, Aaron Tang, Karen Tani, Rebecca Wexler, and participants in the Northern California Junior Faculty Workshop, Loyola Constitutional Law Colloquium, Poverty Law Mini-Workshop, AALS Civil Rights Section Works-in-Progress, NYU Constitutional Theory Colloquium, and the law faculty workshops at Duke, UCLA, the University of Miami, the University of Michigan, and the University of Virginia. I am grateful to the University of Chicago Law Review staff for their exceptional editing, and to Maya Campbell, Toni Mendicino, Talia Stender, and Graham Wyatt for their excellent research assistance.

The substantive Fifth Amendment ideal of preventing the federal government from aiding systemic discrimination receded because of increasing challenges to its substance, judicial fatigue with institutional oversight, and the sweeping scope of the problem—along with collective amnesia regarding the prior decades of constitutional struggle. This Article reveals that forgotten constitutional history. After excavating the Fifth Amendment struggles, I argue that the no-aid norm, and the underlying reality of long-term federal participation in racial apartheid, should be remembered and debated once again.

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Comment
Volume 89.1
The Power of Attorneys: Addressing the Equal Protection Challenge to Merit-Based Judicial Selection
Zachary Reger
B.J. & B.A. 2017, University of Missouri; J.D. Candidate 2022, The University of Chicago Law School.

Many thanks to the staffers and editors of the University of Chicago Law Review for their helpful comments on this piece.

This Comment responds to the equal protection challenge to merit selection. It argues that merit selection is constitutional by way of multiple exceptions, both recognized and implicit, to the “one person, one vote” principle. And though critics of merit selection often couch their arguments in prodemocratic terms, this Comment argues that merit selection—like the “one person, one vote” principle—promotes rather than thwarts the will of the people.

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Comment
Can Procedure Take?: The Judicial Takings Doctrine and Court Procedure
Rebecca Hansen
B.A. 2017, Brown University; J.D. Candidate 2022, The University of Chicago Law School.

Thank you to Alec Mouser, Kelly Gregg, Henry Walter, Sam Sherman, Ryne Cannon, the University of Chicago Law Review editors, and Professors Lee Fennell and Lior Strahilevitz for their help and advice.

In response to the COVID-19 pandemic, several state legislatures and executives limited the circumstances in which landlords could evict their tenants. Predictably, many of these moratoria were met with challenges under the Fifth Amendment’s Takings Clause, which prohibits the government from taking private property for public use without just compensation.

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Book review
v88.3
Organizational Rights in Times of Crisis
Katerina Linos
Professor of Law, University of California, Berkeley, and Co-Director, Miller Center for Global Challenges and the Law

Vanessa Rivas-Bernandy provided extraordinary research assistance for this piece—thinking through counterarguments and limitations to my claims, in addition to reorganizing convoluted sentences, paragraphs, and pages. For very helpful comments, I am also very grateful to Elena Kempf and to participants at the October 23, 2020, Conference on Measuring Impact in Constitutional Law. I am very grateful for the financial support of the Carnegie Foundation, the Miller Center for Global Challenges and the Law, and the German American Academic Exchange Program.

Online
Essay
Empirical Constitutional Studies: Future Directions
Adam Chilton
Adam Chilton is a Professor of Law and the Walter Mader Research Scholar at the University of Chicago Law School.
Mila Versteeg
Mila Versteeg is the Class of 1941 Research Professor of Law at the University of Virginia School of Law and a Carnegie Fellow at the Andrew Carnegie Foundation of New York.

Our new book—How Constitutional Rights Matter—tries to answer a difficult empirical question: do constitutional rights actually change government behavior? We theorize that constitutional rights that protect individuals often fail to constrain governments, but that constitutional rights that protect organizations can be powerful tools to push back against repression.

Empirical Constitutional Studies
Online
Essay
Experimental Methods in Constitutional Law
Adi Leibovitch
Adi Leibovitch is an Assistant Professor of Law at the Hebrew University of Jerusalem.
Alexander Stremitzer
Alexander Stremitzer is the Professor of Law, Economics, and Business at ETH Zurich, Visiting Professor of Law and Senior Scholar in Residence at UCLA Law School, and the J.B. and M.K. Pritzker Family Foundation Distinguished Visiting Professor of Law at Northwestern Pritzker School of Law.

They are grateful to Adam Chilton, Katerina Linos, and Mila Versteeg, for comments on earlier versions of this Essay. They are also indebted to the participants of the Book Conference on Measuring Impact in Constitutional Law held at Chicago in 2020. They thank Costanza Maria Improta for excellent research assistance.

Aright to legal representation has recently been introduced in some Chinese provinces but not in others.

Empirical Constitutional Studies
Online
Essay
Constitutional Comprehensibility and the Coordination of Citizens: A Test of the Weingast-Hypothesis
Jerg Gutmann
Jerg Gutmann is an Assistant Professor at the University of Hamburg’s Institute of Law and Economics and a CESifo Affiliate in Munich.
Mahdi Khesali
Mahdi Khesali is a Research Assistant at the University of Hamburg’s Institute of Law and Economics and a Research Associate at the Max Plank Institute for Research on Collective Goods.
Stefan Voigt
Stefan Voigt is a Director of the University of Hamburg’s Institute of Law and Economics and a CESifo Fellow in Munich.

Some constitutions promise paradise on earth. It is, therefore, not surprising that in many countries constitutional reality does not keep pace with constitutional promise.

Empirical Constitutional Studies
Online
Essay
Knowing the Law
Kevin L. Cope
Associate Professor of Law and Public Policy at the University of Virginia School of Law.
Charles Crabtree
Assistant Professor, Department of Government, at Dartmouth College.

Ensuring compliance with laws that constrain the state is one of public law’s central challenges.

Empirical Constitutional Studies

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