Tom Ginsburg | University of Chicago (original) (raw)
Papers by Tom Ginsburg
American Journal of Sociology, 2011
The Judicialization of Politics in Asia, 2012
SSRN Electronic Journal, 2014
Texas Law Review, 2009
Observers of the global judicialization of politics have noted the spread of constitutional court... more Observers of the global judicialization of politics have noted the spread of constitutional courts around the world, which made their appearance in early twentieth-century Europe and became seemingly required practice thereafter in Asia, Africa, and Latin America. The paradigmatic power of these courts is constitutional review, in which a court evaluates legislation, administrative action, or an international treaty for compatibility with the written constitution. It is natural that writers on the new constitutional courts have concentrated attention on judicial review, for it is here that the courts’ lawmaking power is at its apex. Relatively free of the threat of correction from other political actors, courts exercising judicial review are rather obvi- ously policy-making bodies. But in their understandable eagerness to assess new systems of review, scholars have paid little attention to the other func- tions of constitutional courts — functions that potentially alter the status a...
Texas Law Review, 2011
This paper demonstrates that there is a distinctive style of presidentialism in Latin American co... more This paper demonstrates that there is a distinctive style of presidentialism in Latin American constitutional design. While early constitutions in the region tended to follow the US model of presidency, subsequent constitutions evolved away from this model in favor of giving the president more authority in lawmaking. We demonstrate a substantial amount of convergence over time. This analysis has three important implications. First, it calls attention to geography as an important predictor of constitutional design. Second, our analysis emphasizes change rather than continuity and convergence over time. This approach contrasts with the recent emphasis in comparative law on - legal origins as determinants of contemporary outcomes. Finally, while the legal-origins analysts emphasize the importance of French law in Latin America, we show that at a constitutional level (surely important for economic outcomes), the influence of Spain and the United States was also significant in the early ...
William and Mary law review, 2011
Executive term limits are pre-commitments through which the polity restricts its ability to retai... more Executive term limits are pre-commitments through which the polity restricts its ability to retain a popular executive down the road. In recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This article reviews the normative debate over term limits and identifies the key claims of proponents and opponents. It introduces the idea of characterizing term limits as a variety of default rule to be overcome if sufficient political support is apparent. It then turns to the historical evidence in order to assess the probability of attempts (both successful and unsuccessful) to evade term limits. It finds that, notwithstanding som...
Constitution-Making and Transnational Legal Order, 2019
Author(s): Ginsburg, Tom | Abstract: This article surveys the history and practice of providing c... more Author(s): Ginsburg, Tom | Abstract: This article surveys the history and practice of providing constitutional advice. It first examines antecedents, then looks at the contemporary political economy of the process, drawing on the transnational legal order (TLO) framework to evaluate whether or not it can be characterized as a TLO. The answer is a partial yes. We focus on one feature of the modern situation, the presence of corporate actors—including the United Nations, NGOs, and international organizations—in an increasingly dense social field. This development has laid bare tensions and competition among actors, moving the field toward a nascent TLO that is nevertheless unlikely to fully consolidate or institutionalize. We conclude that the field evidences aspects of a transnational legal order but also serves as an arena in which other TLOs contest over outcomes.
University of Chicago Coase-Sandor Institute for Law & Economics Research Paper Series, 2013
The recent wave of behavioral economics has led some theorists to advocate the possibility of “li... more The recent wave of behavioral economics has led some theorists to advocate the possibility of “libertarian paternalism,” in which regulators designing institutions permit significant individual choice but nonetheless use default rules to “nudge” cognitively biased individuals toward particular salutary choices. In this article, we add the possibility of a different kind of nudge: temporary law. Temporary law is less intrusive than permanent regulation, and is particularly attractive in situations in which we believe that path dependence has produced the status quo. We illustrate the argument with the example of smoking bans, and provide an empirical case study of an actual temporary smoking ban in Champaign, Illinois.
International Journal of Constitutional Law, 2021
Emergency governance, we are often told, is executive governance. Only the executive has the info... more Emergency governance, we are often told, is executive governance. Only the executive has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the classic theorist of emergency rule, conventional accounts describe crisis governance as “Schmittian” and “post-Madisonian,” characterized by an unbound executive that faces few, if any, legal constraints. This article interrogates these propositions using evidence from how countries responded to the 2020 global pandemic during the critical first few months. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. This article finds that, contrary to the conventional wisdom, courts, legislatures, and subnational governments have played important roles in ...
This Article examines the adoption of rights in national constitutions in the post-World War II p... more This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not the drafters’ countries are legally committed to the agreements (though commitment enhances the effect). Our particular focus is on the all-important International Covenant on Civil and Political Rights, whose ratification inclines countries towards rights they, apparently, would not otherwise adopt. This finding confirms the complement...
The events of the Arab Spring and recent military coup in Egypt have highlighted the central impo... more The events of the Arab Spring and recent military coup in Egypt have highlighted the central importance of the constitutional treatment of Islam. Many constitutions in the Muslim world incorporate clauses that make Islamic law supreme or provide that laws repugnant to Islam will be void. The prevalence and impact of these “Islamic supremacy clauses” is of immense importance for constitutional design — not just for Muslim countries but also for U.S. foreign policy in the region, which became engaged in the issue during constitution-writing in Afghanistan and Iraq. However, to date, there has been no systematic or empirical examination of these clauses. Many questions remain unexplored: Where did these clauses originate? How have they spread? Are they anti-democratic impositions? What determines their adoption in national constitutions?This Article fills this gap. Relying on an original dataset based on the coding of all national constitutions since 1789 and case studies from four cou...
Public involvement in constitution making is increasingly considered to be essential for the legi... more Public involvement in constitution making is increasingly considered to be essential for the legitimacy and effectiveness of the process. It is also becoming more widespread, spurred on by constitutional advisors and the international community. Yet we have remarkably little empirical evidence of the impact of participation on outcomes. This essay reports hypotheses on the effect of one aspect of public participation in the constitution-making process - ratification - and surveys available evidence. We find some limited support for the optimistic view about the impact of ratification on legitimacy, conflict, and constitutional endurance.
Annual Review of Political Science, 2021
This article responds to a set of well-known challenges to empirical research on formal instituti... more This article responds to a set of well-known challenges to empirical research on formal institutions in comparative politics. We focus on the case of written constitutions and discuss the scholarly utility of studying such documents in the face of four analytic and theoretical challenges. Each of these challenges, in turn, implies a set of empirical questions, for which we invoke original data to sketch a broad-brushed set of answers. The data analysis and accompanying discussion suggest a set of guidelines for how written constitutions should be deployed in comparative research designs on topics that involve political institutions.
Law & Ethics of Human Rights, 2020
Our era is one of democratic backsliding. International courts and institutions have provided som... more Our era is one of democratic backsliding. International courts and institutions have provided some bulwark against this trend, but we are now witnessing leaders seeking to use international law to extend their power. Courts in several countries have relied on international human rights norms to facilitate term limit extensions by leaders seeking to retain power beyond what is constitutionally allowed. This Article documents these cases and calls for a more robust and substantive international law of democracy-protection.
The Theory and Practice of Legislation, 2020
![Research paper thumbnail of [Dis-]Informing the People's Discretion: Judicial Deference Under The National Security Exemption of the Freedom of Information Act](https://attachments.academia-assets.com/84892923/thumbnails/1.jpg)
](As noted by President Obama’s recent Review Group on Intelligence and Communications Technologies... more As noted by President Obama’s recent Review Group on Intelligence and Communications Technologies, pervasive state surveillance has never been more feasible. There has been an inexorable rise in the size and reach of the national security bureaucracy since it was created after World War II, as we have gone through the Cold War and the War on Terror. No one doubts that our national security bureaucracies need to gain intelligence and keep some of it secret. But the consensus of decades of experts, both insiders and outsiders, is that there is rampant overclassification by government agencies. From its inception in 1966, the Freedom of Information Act (FOIA) has presumed disclosure. And from its inception, Congress intended the federal courts to act as a brake on unfettered agency discretion regarding classification. But courts have not played a strong role in this regard. This Article examines the interplay of overclassification, excessive judicial deference, and illusory agency expe...
Judicial Review in New Democracies, 2003
THE DECLINE OF PARLIAMENTARY SOVEREIGNTY The idea of the sovereignty of Parliament was long seen ... more THE DECLINE OF PARLIAMENTARY SOVEREIGNTY The idea of the sovereignty of Parliament was long seen as the core of democratic practice. The superior position of the popularly elected legislature and its corollary of majority rule have been central principles for democratic revolutionaries since the notion was appended to the unwritten English constitution. At that time, the threat to liberty was monarchical power, and the subjugation of monarchical power to popular control was the primary goal. The resulting doctrine was that Parliament had “the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.” In the continental tradition, the intellectual underpinning of parliamentary sovereignty was provided by the Rousseauian concept of the general will. The people were supreme, and their general will as expressed through their republican representatives could not be challenged. This theory, combined with the regressive position of the judicial parlements in the French Revolution, led to a long tradition of distrust of judges in France. The government du juges replaced the crown as the primary threat to popular will in French political thought. It was natural that the early proponents of democracy supported parliamentary sovereignty. They saw threats to liberty from the traditional sources: the ancien regime , the monarchy, and the church.
SSRN Electronic Journal, 2019
American Journal of Sociology, 2011
The Judicialization of Politics in Asia, 2012
SSRN Electronic Journal, 2014
Texas Law Review, 2009
Observers of the global judicialization of politics have noted the spread of constitutional court... more Observers of the global judicialization of politics have noted the spread of constitutional courts around the world, which made their appearance in early twentieth-century Europe and became seemingly required practice thereafter in Asia, Africa, and Latin America. The paradigmatic power of these courts is constitutional review, in which a court evaluates legislation, administrative action, or an international treaty for compatibility with the written constitution. It is natural that writers on the new constitutional courts have concentrated attention on judicial review, for it is here that the courts’ lawmaking power is at its apex. Relatively free of the threat of correction from other political actors, courts exercising judicial review are rather obvi- ously policy-making bodies. But in their understandable eagerness to assess new systems of review, scholars have paid little attention to the other func- tions of constitutional courts — functions that potentially alter the status a...
Texas Law Review, 2011
This paper demonstrates that there is a distinctive style of presidentialism in Latin American co... more This paper demonstrates that there is a distinctive style of presidentialism in Latin American constitutional design. While early constitutions in the region tended to follow the US model of presidency, subsequent constitutions evolved away from this model in favor of giving the president more authority in lawmaking. We demonstrate a substantial amount of convergence over time. This analysis has three important implications. First, it calls attention to geography as an important predictor of constitutional design. Second, our analysis emphasizes change rather than continuity and convergence over time. This approach contrasts with the recent emphasis in comparative law on - legal origins as determinants of contemporary outcomes. Finally, while the legal-origins analysts emphasize the importance of French law in Latin America, we show that at a constitutional level (surely important for economic outcomes), the influence of Spain and the United States was also significant in the early ...
William and Mary law review, 2011
Executive term limits are pre-commitments through which the polity restricts its ability to retai... more Executive term limits are pre-commitments through which the polity restricts its ability to retain a popular executive down the road. In recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This article reviews the normative debate over term limits and identifies the key claims of proponents and opponents. It introduces the idea of characterizing term limits as a variety of default rule to be overcome if sufficient political support is apparent. It then turns to the historical evidence in order to assess the probability of attempts (both successful and unsuccessful) to evade term limits. It finds that, notwithstanding som...
Constitution-Making and Transnational Legal Order, 2019
Author(s): Ginsburg, Tom | Abstract: This article surveys the history and practice of providing c... more Author(s): Ginsburg, Tom | Abstract: This article surveys the history and practice of providing constitutional advice. It first examines antecedents, then looks at the contemporary political economy of the process, drawing on the transnational legal order (TLO) framework to evaluate whether or not it can be characterized as a TLO. The answer is a partial yes. We focus on one feature of the modern situation, the presence of corporate actors—including the United Nations, NGOs, and international organizations—in an increasingly dense social field. This development has laid bare tensions and competition among actors, moving the field toward a nascent TLO that is nevertheless unlikely to fully consolidate or institutionalize. We conclude that the field evidences aspects of a transnational legal order but also serves as an arena in which other TLOs contest over outcomes.
University of Chicago Coase-Sandor Institute for Law & Economics Research Paper Series, 2013
The recent wave of behavioral economics has led some theorists to advocate the possibility of “li... more The recent wave of behavioral economics has led some theorists to advocate the possibility of “libertarian paternalism,” in which regulators designing institutions permit significant individual choice but nonetheless use default rules to “nudge” cognitively biased individuals toward particular salutary choices. In this article, we add the possibility of a different kind of nudge: temporary law. Temporary law is less intrusive than permanent regulation, and is particularly attractive in situations in which we believe that path dependence has produced the status quo. We illustrate the argument with the example of smoking bans, and provide an empirical case study of an actual temporary smoking ban in Champaign, Illinois.
International Journal of Constitutional Law, 2021
Emergency governance, we are often told, is executive governance. Only the executive has the info... more Emergency governance, we are often told, is executive governance. Only the executive has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the classic theorist of emergency rule, conventional accounts describe crisis governance as “Schmittian” and “post-Madisonian,” characterized by an unbound executive that faces few, if any, legal constraints. This article interrogates these propositions using evidence from how countries responded to the 2020 global pandemic during the critical first few months. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. This article finds that, contrary to the conventional wisdom, courts, legislatures, and subnational governments have played important roles in ...
This Article examines the adoption of rights in national constitutions in the post-World War II p... more This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not the drafters’ countries are legally committed to the agreements (though commitment enhances the effect). Our particular focus is on the all-important International Covenant on Civil and Political Rights, whose ratification inclines countries towards rights they, apparently, would not otherwise adopt. This finding confirms the complement...
The events of the Arab Spring and recent military coup in Egypt have highlighted the central impo... more The events of the Arab Spring and recent military coup in Egypt have highlighted the central importance of the constitutional treatment of Islam. Many constitutions in the Muslim world incorporate clauses that make Islamic law supreme or provide that laws repugnant to Islam will be void. The prevalence and impact of these “Islamic supremacy clauses” is of immense importance for constitutional design — not just for Muslim countries but also for U.S. foreign policy in the region, which became engaged in the issue during constitution-writing in Afghanistan and Iraq. However, to date, there has been no systematic or empirical examination of these clauses. Many questions remain unexplored: Where did these clauses originate? How have they spread? Are they anti-democratic impositions? What determines their adoption in national constitutions?This Article fills this gap. Relying on an original dataset based on the coding of all national constitutions since 1789 and case studies from four cou...
Public involvement in constitution making is increasingly considered to be essential for the legi... more Public involvement in constitution making is increasingly considered to be essential for the legitimacy and effectiveness of the process. It is also becoming more widespread, spurred on by constitutional advisors and the international community. Yet we have remarkably little empirical evidence of the impact of participation on outcomes. This essay reports hypotheses on the effect of one aspect of public participation in the constitution-making process - ratification - and surveys available evidence. We find some limited support for the optimistic view about the impact of ratification on legitimacy, conflict, and constitutional endurance.
Annual Review of Political Science, 2021
This article responds to a set of well-known challenges to empirical research on formal instituti... more This article responds to a set of well-known challenges to empirical research on formal institutions in comparative politics. We focus on the case of written constitutions and discuss the scholarly utility of studying such documents in the face of four analytic and theoretical challenges. Each of these challenges, in turn, implies a set of empirical questions, for which we invoke original data to sketch a broad-brushed set of answers. The data analysis and accompanying discussion suggest a set of guidelines for how written constitutions should be deployed in comparative research designs on topics that involve political institutions.
Law & Ethics of Human Rights, 2020
Our era is one of democratic backsliding. International courts and institutions have provided som... more Our era is one of democratic backsliding. International courts and institutions have provided some bulwark against this trend, but we are now witnessing leaders seeking to use international law to extend their power. Courts in several countries have relied on international human rights norms to facilitate term limit extensions by leaders seeking to retain power beyond what is constitutionally allowed. This Article documents these cases and calls for a more robust and substantive international law of democracy-protection.
The Theory and Practice of Legislation, 2020
As noted by President Obama’s recent Review Group on Intelligence and Communications Technologies... more As noted by President Obama’s recent Review Group on Intelligence and Communications Technologies, pervasive state surveillance has never been more feasible. There has been an inexorable rise in the size and reach of the national security bureaucracy since it was created after World War II, as we have gone through the Cold War and the War on Terror. No one doubts that our national security bureaucracies need to gain intelligence and keep some of it secret. But the consensus of decades of experts, both insiders and outsiders, is that there is rampant overclassification by government agencies. From its inception in 1966, the Freedom of Information Act (FOIA) has presumed disclosure. And from its inception, Congress intended the federal courts to act as a brake on unfettered agency discretion regarding classification. But courts have not played a strong role in this regard. This Article examines the interplay of overclassification, excessive judicial deference, and illusory agency expe...
Judicial Review in New Democracies, 2003
THE DECLINE OF PARLIAMENTARY SOVEREIGNTY The idea of the sovereignty of Parliament was long seen ... more THE DECLINE OF PARLIAMENTARY SOVEREIGNTY The idea of the sovereignty of Parliament was long seen as the core of democratic practice. The superior position of the popularly elected legislature and its corollary of majority rule have been central principles for democratic revolutionaries since the notion was appended to the unwritten English constitution. At that time, the threat to liberty was monarchical power, and the subjugation of monarchical power to popular control was the primary goal. The resulting doctrine was that Parliament had “the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.” In the continental tradition, the intellectual underpinning of parliamentary sovereignty was provided by the Rousseauian concept of the general will. The people were supreme, and their general will as expressed through their republican representatives could not be challenged. This theory, combined with the regressive position of the judicial parlements in the French Revolution, led to a long tradition of distrust of judges in France. The government du juges replaced the crown as the primary threat to popular will in French political thought. It was natural that the early proponents of democracy supported parliamentary sovereignty. They saw threats to liberty from the traditional sources: the ancien regime , the monarchy, and the church.
SSRN Electronic Journal, 2019