85.2
March
2018

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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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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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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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85.2
Democracy’s Deficits
Samuel Issacharoff
Bonnie and Richard Reiss Professor of Constitutional Law, New York University School of Law

Prior versions of this Essay were presented as lectures at the School of Law of the University of Buenos Aires, the Faculty of Law of the University of São Paolo, the University of Texas School of Law, and at the American Philosophical Association Pacific Division Meeting in Vancouver. My deep appreciation goes to Gregory Crane, David Drew, and Stephen Levandoski for their research assistance.

History confounds certainty. Barely a quarter century after the collapse of the Soviet empire, it is democracy that has entered an intense period of public scrutiny.

Institutional Design
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85.2
Terrorism and Democratic Recession
Aziz Z. Huq
Frank and Bernice J. Greenberg Professor of Law, The University of Chicago Law School

Thanks to symposium participants for helpful responses and conversations, and to Brent Cooper and other editors at the Review for excellent edits. Support for this work was supplied by the Frank J. Cicero, Jr. Fund.

The act of terrorism and the state of democracy are related in complex, dimly understood ways.

National Security
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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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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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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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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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85.2
Courts’ Limited Ability to Protect Constitutional Rights
Adam S. Chilton
Assistant Professor of Law and Walter Ma nder Research Scholar, The University of Chicago Law School
Mila Versteeg
Professor of Law, University of Virgin ia School of Law
In October 2015, Poland’s newly elected conservative government moved swiftly to neutralize the country’s Constitutional Tribunal.
Constitutional Law Courts

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