Terrorism and the Constitutional Order

We panicked the last time terrorists struck, and we will panic the next time. September 11 was merely a pinprick compared to the devastation of a suitcase A-bomb or an anthrax epidemic. The next major attack may kill tens of thousands of innocents, dwarfing the personal anguish of those who lost family and friends on 9/11. The political tidal wave threatens to leave behind a mass of repressive legislation far more drastic than anything imagined by the USA PATRIOT Act

The Refund Booth: Using the Principle of Symmetric Information to Improve Campaign Finance Regulation

On March 22, 2006, Professor of Law, Ian Ayres of Yale Law School, delivered the Georgetown Law Center’s twenty-sixth Annual Philip A. Hart Memorial Lecture: The Refund Booth: Using the Principle of Symmetric Information to Improve Campaign Finance Regulation. The article, The Secret Refund Booth, was co-authored with Professor Bruce Ackerman of Yale University. Ian Ayres is a lawyer and an economist. He is the William K. Townsend Professor of Law and Anne Urowsky Professorial Fellow in Law at Yale Law School and a Professor at Yale\u27s School of Management. He is the editor of the Journal of Law, Economics and Organization. Professor Ayres is a regular commentator on public radio’s Marketplace and a columnist for Forbes magazine and regularly writes opeds for The New York Times. He received his B.A. (majoring in Russian studies and economics) and J.D. from Yale and his Ph.D in economics from M.I.T. Professor Ayres clerked for the Honorable James K. Logan of the Tenth Circuit Court of Appeals. He has previously taught at Illinois, Northwestern, Stanford, and Virginia law schools and has been a research fellow of the American Bar Foundation. Professor Ayres has published eight books and over 100 articles on a wide range of topics

Constitutional Politics/Constitutional Law

America is a world power, but does it have the strength to understand itself? Is it content, even now, to remain an intellectual colony, borrowing European categories to decode the meaning of its national identity? This was not always a question posed by the American Constitution. When America was a military and economic weakling on the European fringe, it was at the forefront of constitutional thought. As it transformed itself into the powerhouse of the West, its leading constitutionalists became increasingly derivative. Two centuries onward, the study of the American Constitution is dominated by categories that owe more to European than to American thought and experience

The Structure of Subchapter C: An Anthropological Comment

A striking feature of contemporary legal theory is its narrow focus. A Martian reading fashionable jurisprudence might imagine that everything important could be learned by combining a few common law cases with the hottest news from the Supreme Court. By indulging this neotraditionalist premise, we close ourselves off from the most distinctive aspects of our legal culture: whatever else is obscure, it is clear that we are living in an age of the activist state, in which legislation and administration are central elements of the professional experience. How has this transformation affected the substance and form of legal argument

El surgimiento del constitucionalismo mundial

El surgimiento del constitucionalismo mundial parecía poco probable hace unas décadas, y este artículo se vale del derecho constitucional comparado para explicar cómo ocurrió una expansión tan rápida y difundida, y cómo afectó la práctica del control constitucional. El autor defiende un acercamiento global al problema, y postula diferentes escenarios para el surgimiento del constitucionalismo en un contexto específico; con base en lo anterior, Ackerman identifica diferentes formas de adjudicación constitucional. El artículo señala dos escenarios de fundación: uno, el federalista, tiende a producir un tribunal constitucional que juega un rol de mediador entre el centro y la periferia, y desarrolla un estilo de adjudicación caracterizado por la coordinación y la prudencia. El segundo escenario, “nuevos comienzos”, incluye variantes como la del corte triunfal con el pasado y la ubicación adecuada de un líder máximo; este escenario tiende a generar un estilo de adjudicación “redencionista”, basado en principios generales y en la defensa vehemente de los valores del pueblo.   The rise of world constitutionalism seemed unlikely a few decades ago, and this article turns to comparative constitutional law in order to explain how such a quick and widespread expansion happened, and how it affected the practice of judicial review. Advocating a global approach, and postulating different scenarios for the rise of constitutionalism in a given setting, the author seeks to characterize different forms of judicial review. The article identifies two foundational scenarios: the first, federalism, tends to produce a constitutional court with an intermediary role between the center and the periphery, with a style of adjudication generally marked by coordination and prudence. The second scenario, “new beginnings”, includes variants such as a triumphalist break with the past and the accommodation of a maximum leader; it tends to lead to a style of “redemptive” adjudication based on broad principles and a heated defense of people’s values

Robert Bork\u27s Grand Inquisition

This book is a call to battle-against the enemy within. The rhetoric is martial. We are in the midst of a long-running war for control of our legal culture, which, in turn, [is] part of a larger war for control of our general culture. It is also religious-the struggle is against heresy on behalf of an embattled orthodoxy. The enemy? Subjectivists who turn their backs on history; relativists who seek to impose their moral prejudices on the American people by reading them into the Constitution. These heretics have entrenched themselves in America\u27s law schools, where they seek to bedazzle and intimidate the judiciary by their fancy theories and false erudition-and thereby lead the next generation of lawyers astray

Liberating Abstraction

This is a great moment in world history. From Berlin to Moscow, the news is full of the restless striving of a renascent liberalism. For the first time in a long time, all of Europe resonates with the great liberal themes of freedom and equality under law. Great movements bring great dangers: a mobilized liberalism must compete with resurgent nationalisms, obscurantisms, theocracies. But the new demagogues seem less formidable than Hitler or Lenin or even Mussolini. Though we are in for lots of disappointments, I open my New York Times with something that feels like genuine hope. Will Johannesburg or Havana or Peking successfully manage the formidable challenges of liberal transformation? Maybe the answer will be no, but this is the first time since 18481 when liberals could seriously ask the question

Law, Economics, and the Problem of Legal Culture

It was not always this way. There was a time, not so very long ago, when lawyers treated economists with the same benign condescension they still bestow on practitioners of countless other specialties-biologists or statisticians or psychoanalysts. Doubtless, a lawyer might call on one of these specialists to respond to a question of legal significance, but there was never any question about who was in charge. Lawyers and judges, using their traditional techniques of interpretation and argument, determined when, where, and how nonlegal experts were to enter into the legal conversation: Don\u27t call us, we\u27ll call you. If, for example, lawyers found economists useful when arguing about antitrust law, but useless when talking about torts, the economist was expected to know his place and speak only when spoken to