Constitutional Law

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Article
The Truth of Erasure: Universal Remedies for Universal Agency Actions
T. Elliot Gaiser

T. Elliot Gaiser is the Solicitor General of Ohio. He previously clerked for Associate Justice Samuel A. Alito, Jr., at the Supreme Court of the United States; for Judge Neomi Rao on the U.S. Court of Appeals for the D.C. Circuit; and for Judge Edith H. Jones on the U.S. Court of Appeals for the Fifth Circuit. He holds a J.D. from The University of Chicago Law School and a B.A. in Political Economy and Rhetoric & Public Address from Hillsdale College.

Mathura Sridharan

Mathura J. Sridharan is the Director of Ohio’s Tenth Amendment Center and serves as a Deputy Solicitor General in the Ohio Attorney General’s Office. She previously clerked for Judge Steven J. Menashi on the U.S. Court of Appeals for the Second Circuit and Judge Deborah A. Batts on the U.S. District Court for the Southern District of New York. She holds a J.D. from New York University School of Law, and an M.Eng. in Electrical Engineering & Computer Science and a B.S. in Electrical Engineering & Computer Science and Economics from Massachusetts Institute of Technology.

Nicholas Cordova

Nicholas A. Cordova is an associate at Boyden Gray PLLC and former Simon Karas Fellow to the Ohio Solicitor General. He previously clerked for Judge Paul B. Matey on the U.S. Court of Appeals for the Third Circuit. He holds a J.D. from Harvard Law School and a B.A. in Political Science from Waynesburg University.

Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called “universal” injunctions: the proper scope of remedies under the Administrative Procedure Act (APA) and other statutes providing for judicial review of agency action is “erasure.” This Article aims to save scholars’ recent progress in showing the legality of stays and vacatur under the APA from muddled thinking that conflates these forms of relief with other universal remedies that face growing criticism.

Administrative Law Constitutional Law
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Article
85.4
Citizens of the State
Maeve Glass
Associate Professor of Law, Columbia Law School

For helpful comments on earlier drafts, many thanks to Tomiko Brown-Nagin, Jessica Bulman-Pozen, Christine Desan, Einer Elhauge, Elizabeth F. Emens, Marie-Amélie George, Noah Glass, Jeffrey Gordon, Annette Gordon-Reed, Jamal Greene, Ariela J. Gross, Hendrik Hartog, Bert I. Huang, Freya Irani, Olatunde C. Johnson, Jeremy Kessler, Ryan Liss, Kenneth W. Mack, Jane Manners, Henry P. Monaghan, Shaun Ossei-Owusu, Christina Duffy Ponsa-Kraus, Vlad Perju, David Pozen, Alex Raskolnikov, Martha A. Sandweiss, Carol Sanger, Matthew A. Shapiro, Emily Stolzenberg, Sarah L. Swan, Sean Wilentz, and Rebecca E. Zietlow, as well as the editors of The University of Chicago Law Review and participants in the Columbia Law School Associates and Fellows Workshop, the Harvard Legal History Workshop, and the American Society for Legal History.

In the midst of a New England winter long ago, young people of Boston filed into a drafty meeting hall up the road from the harbor. They had assembled on that January morning in 1839 for the seventh annual meeting of the New England Anti-Slavery Society.

Constitutional Law
1
Article
Severing Unconstitutional Amendments
James Durling
Yale Law School, JD Candidate, 2018
E. Garrett West
Yale Law School, JD Candidate, 2018

Thanks to John Brinkerhoff, Abbe Gluck, Ted Lee, Daryl Levinson, Scott Levy, and Mike Showalter for helpful comments and conversations. Thanks also to the careful editors at the University of Chicago Law Review. All errors are our own.

Constitutional Law
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Essay
85.2
Against Constitutional Excess: Tocquevillian Reflections on International Investment Law
David Schneiderman
Faculty of Law and Department of Political Science (courtesy), University of Toronto

Political sociologist Claus Offe has diagnosed the participatory deficit in North Atlantic democracies as the product of an imbalance in state–market relations. When the market is supreme, public policy can do little to constrain the market’s ever-expanding realms.

Constitutional Law International Law
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Essay
85.2
Autocratic Legalism
Kim Lane Scheppele
Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and University Center for Human Values, Princeton University

Research for this Essay was conducted while the author was Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization, Harvard Law School, Spring 2017. She would like to thank the members of the Group on Autocratic Legalism (GOAL) at Harvard Law School, particularly Cem Tecimer, Isabel Roby, and Jakub Jozwiak for their excellent research assistance on Turkey, Venezuela, and Poland, respectively, as well as Mark Tushnet, Vicki Jackson, Scott Brewer, Oren Tamir, and others who attended these sessions for providing both a sounding board and new cases to consider. For valuable research assistance on Hungary, she would also like to thank Panna Balla of Harvard Law School and Cassie Emmons and Miklós Bánkuti, currently and formerly of Princeton. She also appreciates the daily counsel of Jan-Werner Müller, Dan Kelemen, Laurent Pech, Dimitry Kochenov, Tomasz Koncewicz, and Gábor Halmai for constant exchanges on these topics in real time. And she thanks participants in the symposium organized by Tom Ginsburg and Aziz Huq on The Limits of Constitutionalism, as well as the editors of The University of Chicago Law Review for insightful suggestions.

By now, we know the pattern: A constitutional democracy, flawed but in reasonably good standing, is hit by a transformative election.

Constitutional Law
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Essay
85.2
Populist Constitutions
David Landau
Mason Ladd Professor and Associate Dean for International Programs, Florida State University College of Law

With the rise of populist political leaders in the West, such as President Donald Trump and Marine Le Pen, the study of populism has become a central concern.

Constitutional Law
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Essay
85.2
Competing Orders? The Challenge of Religion to Modern Constitutionalism
Ran Hirschl
Professor of Political Science & Law, University of Toronto, and Alexander von Hum-boldt Professor of Comparative Constitutionalism, University of Göttingen.
Ayelet Shachar
Professor of Law, University of Toronto, and Director of the Max Planck Institute for the Study of Religious and Ethnic Diversity.

The rule of law and the rule of God appear to be on a collision course.

Constitutional Law Freedom of Religion
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Essay
85.2
The Wrong Rights, or: The Inescapable Weaknesses of Modern Liberal Constitutionalism
Richard A. Epstein
Laurence A. Tisch Professor of Law, New York University School of Law; the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; and Senior Lecturer, The University of Chicago Law School

My thanks to Julia Haines and Manuel Valle, The University of Chicago Law School, Class of 2017, and Kenneth Hersey and Jonathan Povilonis, NYU School of Law, Class of 2018, for their usual excellent research assistance.

Professors Tom Ginsburg, Aziz Huq, and Mila Versteeg (GHV) have written a mile-a-minute, and decidedly one-sided, account of the decline and fall of liberal constitutionalism throughout the world in the past generation.

Civil Rights Constitutional Law
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Essay
85.2
Liberal Constitutionalism and Economic Inequality
Rosalind Dixon
Professor of Law, UNSW Sydney

Many thanks to Richard Briffault, Tom Ginsburg, Jamal Greene, Ran Hirschl, Richard Holden, Aziz Huq, David Landau, Sabeel Rahman, Kim Lane Scheppele, and Mila Versteeg for helpful comments and suggestions on earlier drafts of this Essay. Thanks are also due to Melissa Voigt for outstanding research assistance.

Julie Suk
Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University

Equality is guaranteed in every liberal-democratic constitution around the world, but inequality of wealth and income is widespread and on the rise.

Constitutional Law
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Essay
85.2
Is EU Supranational Governance a Challenge to Liberal Constitutionalism?
Gráinne de Búrca
Florence Ellinwood Allen Professor of Law, NYU Law Schoo

The European Union was founded in the 1950s as an experiment in postwar regional integration, in part to help rebuild national economies damaged by World War II through economic integration, and in part to ward off, by means of closer legal and political integration of states, the threat of totalitarianism and Soviet expansion.

Constitutional Law International Law

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