Public Choice

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Article
Volume 92.4
Looking for the Public in Public Law
Nikhil Menezes
Ph.D. Candidate (Politics), Princeton University.

For helpful comments on earlier drafts, we thank Nick Bagley, Chuck Beitz, Jessica Bulman-Pozen, Josh Chafetz, Adam Davidson, Liz Emens, Bridget Fahey, Lee Fennell, Jon Gould, Aziz Huq, Jeremy Kessler, Genevieve Lakier, Daryl Levinson, Pratap Bhanu Mehta, Sam Moyn, Jan-Werner Müller, Rick Pildes, Jed Purdy, Max Ridge, and Tim Wu, as well as workshop participants at the University of Chicago Law School and Columbia Law School. For excellent research assistance, we thank Abigail George.

David E. Pozen
Charles Keller Beekman Professor of Law, Columbia Law School.

For helpful comments on earlier drafts, we thank Nick Bagley, Chuck Beitz, Jessica Bulman-Pozen, Josh Chafetz, Adam Davidson, Liz Emens, Bridget Fahey, Lee Fennell, Jon Gould, Aziz Huq, Jeremy Kessler, Genevieve Lakier, Daryl Levinson, Pratap Bhanu Mehta, Sam Moyn, Jan-Werner Müller, Rick Pildes, Jed Purdy, Max Ridge, and Tim Wu, as well as workshop participants at the University of Chicago Law School and Columbia Law School. For excellent research assistance, we thank Abigail George.

The “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the American public as playing myriad roles in governance—checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on the questions of interest. This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and intellectual history, and to propose a pragmatic response—grounded in the recovery of the public’s role as an author and not just a monitor of public law.

Public Choice
2
Essay
77.1
Entrenching Environmentalism: Private Conservation Easements over Public Land
Christopher Serkin
Associate Professor, Brooklyn Law School

Thanks to the Symposium organizers and attendees for their input. I am indebted to Vicki Been, Michael Cahill, Clay Gillette, David Golove, Lucy Gratwick, Rick Hills, Ted Janger, Gerald Korngold, Bill Nelson, and Nelson Tebbe for stimulating conversations about the topic. Thanks to Gideon Parchomovsky and to the junior faculty at Brooklyn Law School for feedback on an early draft.

Cities Land Use Public Choice
2
Essay
77.1
Direct Voting by Property Owners
Thomas W. Merrill
Charles Evans Hughes Professor of Law, Columbia Law School

This Article has benefited from comments of participants at The Univeristy of Chicago Law School’s Symposium, Rethinking the State and Local Government Toolkit, and from a faculty workshop at Wisconsin Law School. Many thanks to Bob Ellickson for reading and commenting on an earlier version of this Article and to Erin Brantley Webb for outstanding research assistance.

Cities Property Law Public Choice
2
Article
77.4
On Law’s Tiebreakers
Adam M. Samaha
Professor of Law, The University of Chicago Law School

Thanks to Matt Adler, Douglas Baird, Omri Ben-Shahar, Lee Fennell, Barry Friedman, Jake Gersen, Aziz Huq, Dan Kahan, Saul Levmore, Anup Malani, Tom Miles, Richard McAdams, Rick Pildes, Eric Posner, Jennifer Rothman, and David Strauss for helpful conversations and comments on an earlier draft, and to workshop participants at Loyola Law School Los Angeles, The University of Chicago Law School, and New York University Law School’s Constitutional Theory Colloquium. The latter workshop had to be cut short, and dramatically so, but Rick Pildes and David Golove made sure that I benefited from the participants’ generous attention to the Article. Hanna Chung and Daniel Roberts provided excellent research assistance. Mistakes are mine.

Institutional Design Judicial Decision-Making Public Choice
2
Article
78.3
Public Entrenchment through Private Law: Binding Local Governments
Christopher Serkin
Professor of Law, Brooklyn Law School

Thanks to Vicki Been for early conversations about this Article. I received invaluable comments from Greg Alexander, Fred Bloom, John Echeverria, Lee Fennell, Ted Janger, Jim Krier, Rebecca Kysar, Eric Posner, Julie Roin, Stew Sterk, Nelson Tebbe, and participants in faculty workshops at Brooklyn Law School and Cornell Law School, as well as participants at the Tel Aviv Environmental Law and Policy Workshop. Thanks to the Brooklyn Law School Dean’s Summer Research Fund for generously supporting this project. Carrie Darman and Amanda Zink provided research assistance.

Contract Law Property Law Public Choice
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Book review
84.2
Positive Pluralism Now
Paul Horwitz
Gordon Rosen Professor of Law, University of Alabama School of Law

My thanks to Rick Garnett and Marc DeGirolami for comments.

A long time ago—roughly between the 2014–2015 academic year and the spring of 2016, when Donald Trump’s presidential candidacy monopolized the public conversational agenda—there was a heated debate about whether our culture was experiencing a reprise of the 1990s and its struggles over “political correctness.”

Freedom of Speech Institutional Design Public Choice
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Essay
84.1
The Concepts of Law
Tom Ginsburg
Leo Spitz Professor of International Law and Ludwig and Hilde Wolf Research Scholar, The University of Chicago Law School
Nicholas Stephanopoulos
Assistant Professor of Law, The University of Chicago Law School

Thanks to John Gerring, Brian Leiter, Saul Levmore, Simone Sepe, and Lawrence Solum for superb comments.

I.  A Primer on Conceptualization and Measurement

A.    Concepts and Conceptualization

Best Practices Empirical Analysis Public Choice

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